Opinion
March 5, 1930.
1. CERTIORARI: To Court of Appeals: Inconsistencies in Opinion. It is not the province of this court to reconcile alleged inconsistencies in the opinion of a Court of Appeals brought here on certiorari where the matters complained of were not necessary to a decision of the issues there presented and joined.
2. SPECIAL TAX BILL: Cancellation: Changes in Height of Pavement and Gutter. It is not the law that changes in the height of the gutter and pavement from the height called for by the contract will not justify a cancellation of a special tax bill issued to pay for the street improvement, unless it appears that there was some advantage accruing to the contractor, or that they worked a fraud upon the public, or injured the value or appearance of the work; and the Court of Appeals in so holding, and in ignoring the effect of such changes on abutting property, contravened the decisions of this court and misquoted the doctrine stated in two of the opinions by it cited.
OPINION AND RECORD QUASHED.
Franken Timmons for relators.
(1) If the general principles of law announced by the Court of Appeals are contrary to general principles laid down by this court, then the judgment should be quashed. State ex rel. Roberts v. Trimble, 316 Mo. 365; State ex rel. v. Reynolds, 287 Mo. 710; State ex rel. v. Reynolds, 214 S.W. (Mo.) 122; State ex rel. v. Reynolds, 287 Mo. 174. (2) The holding of the Court of Appeals that, since defendant knew of the changes in the plans and specifications and saw them made without protest, he could not go into equity and ask cancellation of the tax bill because of such changes, is contrary to the holding of this court in: Commerce Trust Co. v. Keck, 283 Mo. 209; Wetterau v. Trust Co., 285 Mo. 565; Flinn v. Gillen (Mo.), 10 S.W.2d 928; Exter v. Kramer, 316 Mo. 762. (3) Plaintiff in its reply did not plead estoppel. It was, therefore, out of the case. The Court of Appeals therefore failed to follow controlling decisions of this court in holding that defendant was estopped, because estoppel was not pleaded. The Court of Appeals so held in the first part of its opinion and then in the latter part held that the defendant was estopped anyway. Cases holding that estoppel must be pleaded are numerous. McLain v. Trust Co., 292 Mo. 114; Dairy Co. v. Bank, 315 Mo. 849; Haley v. Sippley, 317 Mo. 505. (4) The holding that even though the changes in the plans and specifications damaged defendant's property, still this did not constitute a defense to an action on the tax bill and did not justify the cancellation thereof, because such changes did not give any advantage to the contractor, or work any fraud on the public, or injure the value or appearance of the work, is contrary to the following decisions of this court holding that where the deviation in the plans and specifications in making public improvements injure abutting property, there is no substantial compliance with the contract, and that the tax bill issued for the work should be cancelled. St. Joseph v. Anthony, 30 Mo. 537; Risley v. St. Louis, 34 Mo. 404; St. Louis v. Clemens, 36 Mo. 468; Sheehan v. Owen, 82 Mo. 457; Cole v. Skrainka, 105 Mo. 303; Steffen v. Fox, 124 Mo. 630; St. Louis v. Ruecking, 232 Mo. 325.
Charles L. Graham for respondents.
(1) In making public improvements a substantial compliance with the law is sufficient, the circumstances in each case determining whether there has been a substantial compliance. A variation from the specifications which does not materially change the character, location, or cost of improvements, or work a fraud on the public, or give an advantage to the contractor, or injure the value or appearance of the property, is not sufficient to justify the cancellation of a tax bill by a court of equity. Mayers v. Woods, 173 Mo. App. 565; Platte City v. Baxter, 141 Mo. App. 175; Porter v. Painting Co., 214 Mo. 20; St. Louis v. Ruecking, 253 Mo. 325; Trimble v. Stewart, 168 Mo. App. 276. (2) A slight deviation of pavement from the center of a street in order to avoid an offset or jog when it crosses another street, which conformed to the existing conditions, held not to justify a cancellation of tax bills. Trimble v. Stewart, 68 Mo. App. 276. (3) The court should be liberal in passing upon the validity of proceeding for street improvements. Barber Asphalt Paving Co. v. Hydraulic Press Brick Co., 170 Mo. App. 503. (4) There are numerous definitions of the phrase "substantial performance" each of which is given in application of the facts of the individual case. One of the most general of these may be found in Manning v. School District, 102 N.W. 356, 364, 124 Wis. 84: "`Substantial performance' means strict performance in all the essentials necessary to the full accomplishment of the purposes for which the thing contracted for was designed." (5) It is the rule in this State that a substantial conformity to the contract is all that is required, and not a literal compliance. Trimble v. Stewart, 168 Mo. App. 276; City v. Paxton, 141 Mo. App. 175; Porter v. Painting Co., 214 Mo. 1; St. Louis v. Ruecking, 232 Mo. 325.
This is a proceeding by certiorari to quash the opinion of the Kansas City Court of Appeals in the case of Town of Carrollton, Missouri, to the use of Hanchett Bond Company, assignee of C.F. Brindle, Respondent, v. M.B. Tonnar, Appellant. The opinion discloses that the action was to establish the lien of a tax bill against property of appellant Tonnar for the paving and curbing of West Heidel Avenue in the Town of Carrollton, Missouri. There was a judgment for plaintiff, who is respondent here, for the amount of the tax bill and interest in the total sum of $483.49, and from this judgment defendant appealed.
The suit was brought under the provisions of Section 8738, Revised Statutes 1919, relating to the enforcement of tax bills in cities operating under special charters, Carrollton being of that class. The answer admitted ownership of the property and set up several defenses, the one with which respondents' opinion is concerned being as follows:
". . . . Defendant states that there was no substantial performance of the terms and conditions of the contract for the paving, guttering and curbing of said West Heidel Avenue, and that by reason thereof the tax bill herein sued on is void and should be cancelled and for naught held; that the contractor, C.F. Brindle, failed to build the curb along the south side of West Heidel Avenue and between the east line of South Monroe Street and the west line of South Folger in said town to the height of six inches as required by said contract, and said contractor failed to build the surface of the pavement at the intersection of said West Heidel Avenue on said South Monroe Street according to grade thereof so as to cause water flowing to said intersection to flow to the south and east side of said intersection and to be cast upon the property of defendant causing him irreparable injury; that had said pavement been constructed according to grade the water flowing into said intersection from the west and north would have flowed along the west line of South Monroe Street and away from defendant's property, but that by reason of the fact that said grade was raised and the curb along defendant's property was constructed lower than the height required by said contract, the defendant has been damaged and by reason of the fact that said failure to carry out said contract are substantial breaches thereof, said tax bill against the property of defendant should be cancelled and for naught held."
The answer prayed for cancellation of the tax bill, and plaintiff's reply was a general denial.
In presenting the first alleged conflict counsel for relator quote from respondents' opinion as follows:
"Plaintiff urges defendant is estopped from suing to cancel the tax bill because he requested certain changes in the performance of the contract. This argument is based upon the fact that defendant asked and secured a change in the grade at South Folger Street at its junction with West Heidel Avenue, and secured a change in the curbing in two places in front of his east lot. It has been held that estoppel is an affirmative defense and must be specially pleaded. [Haley v. Sippley (Mo.), 297 S.W. 362; McLain v. Trust Co., 292 Mo. 114, 237 S.W. 506; Dairy Co. v. Bank, 315 Mo. 849, 288 S.W. 359.] The record discloses that estoppel was not pleaded and it is therefore out of the case."
Also:
"It has also been held that a property owner who has full knowledge of any technical defect in a procedure for street improvement and makes no objection until the work is completed, cannot go into equity and ask cancellation of a tax bill because of such technical defect. [Gratz v. Kirkwood, 182 Mo. App. 581, 166 S.W. 319.] The record shows defendant knew of these changes and saw them made without protest."
Counsel for relator say that the excerpt last above quoted is in conflict with the paragraph first above quoted, in that the opinion thus first holds that there is no estoppel in the case because it was not pleaded, and later holds that defendant was estopped to ask cancellation of the tax bill because he knew of the changes complained of and saw them made without protest. While confessing our inability to understand the relevancy of the two sentences last above quoted to their immediate context or to the conclusion reached by the opinion, we are not convinced that they mean just what relator contends they do. In the first place, the paragraph first above quoted apparently undertakes to declare the law of the case on the point covered, and that in harmony with our decisions. It is not reasonable to suppose that the writer of the opinion would also assert that the contrary doctrine was likewise applicable. The authority cited in support of what was said does not indicate any such intention. Furthermore, the doctrine there stated, and the subsequent observation that "the record shows defendant knew of these changes and saw them made without protest," are in nowise determinative of or necessary to the final holding that "defendant has failed to show there was not a substantial compliance with the contract." Even if the expressions here objected to were intended to relate to estoppel they would be obiter dicta, because the opinion positively states that estoppel was not pleaded, and hence was not in the case. It is not the province of this court to reconcile alleged inconsistencies in the opinion itself brought here on certiorari where the matters complained of are not necessary to a decision of the issue there presented and joined. This point is ruled against relator.
It is next said that our decisions are contravened by the following part of respondents' opinion:
"The extent of the changes made in the contract here involved is not in dispute. The points relied upon by defendant to defeat the tax bill are (1) that the guttering at the northwest corner of defendant's property was constructed at a height of only three inches when the contract called for a six-inch gutter; (2) the pavement on the west side of South Monroe Street, beginning at a point twenty-four feet northwest of the corner of defendant's property was constructed 7½ inches higher than called for in the contract; and a deviation in the pavement in the center of the street, as detailed in the statement of facts above set forth. It is insisted that these changes were material and resulted in the damage to defendant's property of which he complains. However, in these changes we see no advantage accruing to the contractor, or that they work any fraud on the public, or injure the value or appearance of the work. In such situation it has been held that the changes would not justify a cancellation of the special tax bill. [St. Louis v. Ruecking, 232 Mo. 325, 134 S.W. 657; Meyers v. Wood, 173 Mo. App. 564, 158 S.W. 909.]"
As we read the foregoing respondents in effect say that such changes will not justify a cancellation of a special tax bill unless it appears that there was some advantage accruing to the contractor, or that they worked a fraud on the public, or injured the value or appearance of the work. This statement altogether ignores the effect, if any, of such changes upon abutting property. It is in conflict with our own decisions and misquotes the doctrine stated in the two opinions therein cited. To be in line with the authorities cited the word "property" or a synonym thereof, would have to appear in the place of the word "work" in the sentence next to the last in the paragraph above quoted. Because of the conflict so appearing respondents' opinion and the record pertaining thereto are quashed. All concur.