Lumber Co. v. Owen. ALLEN, J.—This is a suit in equity, prosecuted by plaintiff corporation, the owner of certain property abutting upon Jefferson street in the city of Mexico, Missouri, to cancel a special tax assessment thereon in favor of the defendant contractor for the paving and curbing of said street. The original tax bill, which the petition seeks to have cancelled, was for $1137.48, and was issued on May 4, 1909, jointly against three lots belonging to the appellant, though the ordinance levying the special assessment levied it against the lots separately. The suit was instituted on August 20, 1910, and during its pendency, to-wit, on April 12, 1911, the original tax bill was cancelled and withdrawn by the city, and a separate tax bill was issued against each lot for $379.16. And thereafter the defendant Owen, the contractor, filed an amended answer, alleging the cancellation of the original tax bill and the issuance of the three new bills, and therewith filed three separate counterclaims seeking to enforce the lien of the new tax bills. It is unnecessary to further notice the pleadings. The suit was originally instituted against both Owen, the contractor, and the city, but the court dismissed it as to the city, on the ground that it had no interest in the litigation. The trial, before the court sitting as a chancellor, resulted in a finding for defendant Owen, both on plaintiff's bill and on each of said defendant's three counterclaims. Judgment followed accordingly, and the case is here upon plaintiff's appeal. On July 15, 1908, the city council of the city of Mexico passed a resolution, which was thereafter duly published, declaring it necessary to pave the portion of Jefferson street in question with first-class vitrified paving brick or blocks, and to curb the same with firstclass concrete curbing, reference being made to plans, diagrams and specifications on file with the city clerk, filed by the city engineer; the cost of such improvement to be paid by levying an assessment against the abut Lumber Co. v. Owen. ting property. On the same day plans and specifications were filed by the city engineer with the city clerk, the former consisting of a plat or map, and the specifications being comprised within and made a part of a contract prepared in blank to be entered into with the successful bidder for such street improvement. On August 3, 1908, an ordinance was passed authorizing the making of the improvement covered by the resolution aforesaid, to be paid for by the issuance of special tax bills, providing, among other things, for the publication for bids and the letting of the work to the lowest and best bidder. Thereafter the city engineer submitted an estimate of the cost of the improvement; and upon bids being received defendant Owen was the successful bidder, and a contract was duly entered into with him of date August 20, 1908. The contractor sublet the work of putting in the curbing to one Hendricks, as the contract permitted. It appears that the work both upon the paving of the street and the putting in of the curbing progressed with reasonable speed, and was completed by December 25, 1908, but it seems that the curbing cracked and crumbled in places, requiring it to be repaired, which, on account of unfavorable weather conditions, was not done until April, 1909. This having been done, the city engineer reported that the entire work had been completed in substantial compliance with the contract, and the same was thereupon accepted and, by an ordinance approved May 4, 1909, tax bills were ordered to be issued to pay the cost thereof. Such further details of the evidence as it may be necessary to notice in connection with the questions raised on appeal will be referred to in the course of the opinion. I. The point is made that the resolution declaring the improvement necessary is too vague and uncertain in its terms, in that certain distances and dimen Lumber Co. v. Owen. sions are not shown; but it is clear that these are sufficiently supplied by the plans and specifications filed by the city engineer in the office of the city clerk, which by specific reference were incorporated into the resolution. [See Bridewell v. Cockrell, 122 Mo. App. 196, 1. c. 203, 99 S. W. 22.] An examination of the resolution shows clearly that it fully complies with the requirements of the statute, viz., sections 9254 and 9255, Revised Statutes 1909, applicable to cities of the third class. II. It is urged that there was no estimate of the cost of the improvement within the contemplation of the statute, supra. But this contention is likewise without merit. The estimate filed by the city engineer gave the estimated cost of paving the street, stating separately the estimated cost per square yard of the foundation, sand cushions, fillers and brick surface, which aggregated $1.75 per yard for the finished pavement. The cost of the curbing was estimated at sixty cents per lineal foot. And it was estimated that there would be 14,207.2 square yards of paving and 6546 lineal feet of curbing, the cost of the whole totaling $24,995.60. It is altogether clear that the estimate is sufficient. A number of cases are cited in support of appellant's position, but they are without influence particularly in view of the recent ruling of the Supreme Court in Boonville v. Stephens, 238 Mo. 339, 141 S. W. 1111, where an estimate was held sufficient in which the engineer merely stated that in compliance with his duty as city engineer he had computed the cost of paving the street and found "that the work should be done at a cost not to exceed $1.47 per square yard." This ruling we followed in Gratz v. City of Kirkwood, 182 Mo. App. 581, 166 S. W. 319, and it is conclusive here. III. It is insisted by appellant that the assessment is void because of the failure of the contractor to complete the work within the time limit. Lumber Co. v. Owen. The ordinance above referred to, authorizing the improvement, provided that the work should be completed on or before Janaury 1, 1909, but that days lost in consequence of any restraining order or court proceedings or bad weather should be added to the time specified. And the contract provided that the work should be completed on or before January 1, 1909, "unless delayed by restraining orders, court proceedings, or bad weather, and the council of the city of Mexico shall grant an extension of time therefor." It appears that both the paving and the curbing were fully constructed by December 25, 1908, and the whole street thrown open to traffic, though the curbing had crumbled or "flaked" off in places. There was much evidence to the effect that the damages to the curbing was occasioned by the freezing of the newly made concrete at times, during the progress of the work. On the part of plaintiff it was sought to show that the condition of the curbing was due to poor workmanship and an improper mixture of the concrete; but the evidence well supports the conclusion which the trial court evidently reached that the defects in the curbing were due to the fact that the temperature at times fell below the freezing point, particularly at night, while the curbing was being installed, whereby parts thereof were damaged. On or about December 28, 1908, the city engineer reported that the work had been completed in substantial compliance with the plans and specifications therefor. It appears, however, that plaintiff, who had opposed the improvement from the beginning, and some other citizens, protested against the acceptance of the work; and on February 8, 1909, an ordinance was passed which recited that some defects in the curbing had developed by reason of the "winter weather," and which purported to postpone the acceptance of the work on account of bad weather, in accordance with the ordinance and contract under which the same was Lumber Co. v. Owen. done; the contractor being thereby required to comply with his contract as soon as it was reasonably possible to do so, "taking into consideration the condition of the weather as suitable to said work." Thereafter, in April, 1909, and, it is said, as soon as the work could safely be done, defects in the curbing were remedied, under the direction of the city engineer, who, it appears, required the resurfacing thereof for the length of an entire block wherever repairing was necessary in such block, so that it would not present an appearance of "patchwork." On May 3, 1909, the engineer renewed his report to the mayor and council, to the effect that the work had been completed in compliance with the contract, stating that the contractor had repaired all of the aforesaid defects in the curbing. And thereupon the work was duly accepted and the issuance of the taxbills therefor authorized. Appellant's contention is that the time for completing the work expired January 1, 1909, and that the municipal authorities were without power thereafter to authorize an extension of time and revitalize the contract, and that the assessment for the work, and the taxbills predicated thereupon are necessarily void, citing: Neill v. Gates, 152 Mo. 585, 54 S. W. 460; Hund v. Rockliffe, 192 Mo. 312, 91 S. W. 500; Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163; Schibel v. Merrill, 185 Mo. l. c. 550, 83 S. W. 1069; Paving Co. v. Munn, 185 Mo. 1. c. 569, 83 S. W. 1062; Montague v. Kalmeyer & Co., 138 Mo. App. 288, 120 S. W. 637; Construction Co. v. Coal Co., 205 Mo. 49, 103 S. W. 93. But it is quite clear that the doctrine invoked by appellant has here no application, and a review of the foregoing cases is unnecessary. Neither the ordinance authorizing the improvement, nor the contract, unconditionally required the work to be completed within a definite specified time. The controlling provisions of the ordinance, upon which the provisions of the contract to the same general effect are predicated, are that days lost on ac |