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by the ordinance. Held that, as abutting owners were not injured, and as the contractor acted in good faith, the fact that the work was not in accordance with the specifications will not avoid special tax bills, particularly as the contractor's compensation depended upon the amount of earth excavated.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1066, 1067; Dec. Dig. 446.*]

7. MUNICIPAL CORPORATIONS (8 446*)-PUBLIC IMPROVEMENTS-SPECIAL ASSESSMENTS.

A special assessment for street paving cannot be avoided on the ground that there was not an exact compliance with the ordinance, which provided for a bed of sand four inches in depth; a substantial compliance being all that is required.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1066, 1067; Dec. Dig. § 446.*]'

8. MUNICIPAL CORPORATIONS (§ 363*)-—PUBLIC IMPROVEMENTS-SPECIAL ASSESSMENTS. Where an ordinance providing for the pavement of a street with vitrified brick, laid on a sand bed four inches deep, did not require any impervious filler between the bricks, the fact that, four years after the pavement was laid, the bed had worn thin in many places did not show a noncompliance with the specifications.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 896; Dec. Dig. § 363.*]

NANCES.

Where an ordinance providing for the pavement of a street required the contractor, whenever the parkway back of the curb needed filling, to bring it to proper grade with surplus dirt from out of the street, it did not contemplate that the contractor should be bound to fill a ravine 10 to 20 feet deep.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 888; Dec. Dig. § 356.*]

Appeal from Circuit Court, Nodaway County; William C. Ellison, Judge.

Action by the City of Maryville against John B. Cox and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

Shinabargar, Blagg & Ellison, of Maryville, for appellant. Cook, Cummins & Dawson, of Maryville, for respondents.

First. That resolution D, the preliminary

9. MUNICIPAL CORPORATIONS (§ 356*)-PUB-resolution declaring the work of improveLIC IMPROVEMENTS-STREET PAVING-ORDI- ment necessary, did not include and describe the work of grading or reducing said street to the established grade, as required by statute.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1066, 1067; Dec. Dig. § 446.*]

ELLISON, P. J. [1] Plaintiff's action is to enforce the lien of six special tax bills issued by the city of Maryville, a city of the third class, for grading, paving, and curbing one of its streets about one mile in length; the paving to be with vitrified brick, laid down on four inches of sand. Plaintiff is the assignee of the bills. The work was accepted by the city and tax bills issued. The judgment in the circuit court was for the defendant.

12. MUNICIPAL CORPORATIONs (§ 446*)—PuBLIC IMPROVEMENTS-SPECIAL ASSESSMENTS

At the trial plaintiff introduced the tax bills, and thereby made a prima facie case. Defendant then took up the burden of defense on these grounds, as set out in his brief:

10. MUNICIPAL CORPORATIONS (§ 446*)-PUвLIC IMPROVEMENTS-STREET PAVING-SPECIAL ASSESSMENTS.

A special assessment for paving cannot be avoided because a sand bed was not smoothed in accordance with the ordinance, where the method there prescribed was found impracticable, and another method was substituted with the approval of the city engineer, who superintended the work for the municipality.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1066, 1067; Dec. Dig. § 446.*] 11. MUNICIPAL CORPORATIONS (§ 446*)-PUB-ed LIC IMPROVEMENTS-SPECIAL ASSESSMENTSVALIDITY.

The failure of a paving contractor to finish off the curb as required will not defeat the entire tax bill for the paving assessment.

Second. That there was no estimate of the cost of the improvement prepared and filed by the city engineer with the board of aldermen, and that if the paper filed by him be considered an estimate, that the contract price at which the work was let was above and in excess of said estimate.

Third. That there was not a substantial

compliance by the contractor with the provisions of Paving Ordinance No. 85, the specifications therein contained, and the contract for the improvement, in the following: (a) That the paving improvement was not placed on the grade established therefor by Ordinance No. 85, as required by the specifications and contract; (b) that the sand foundation for the pavement was not construct

four inches thick after rolling, in compliance with the paving ordinance, specifications, and contract; (c) that the parkways were not filled and finished level with the curbing, in compliance with the paving ordinance, specifications, and contract; (d) that the sand bed or foundation was not prepared and smoothed off to a true and even surface with the templet stretching from curb to curb, as required by the paving ordinance, specifications, and contract; (e) that the curbing was not finished with a coat of neat cement, troweled and finished to a uniform surface and color throughout, as required by the paving ordinance, specifications, and contract.

-VALIDITY.

Where a paving contractor did not finish off the curb as required by the ordinance, and there was no evidence as to what sum should be deducted for that reason, the entire value of the curb should be deducted in an action to enforce special tax bills for the assessment.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1066, 1067; Dec. Dig. 446.*]

[2, 3] The court properly found against de

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fendant on the first ground. The resolution | whole proceeding. Barring this, which we was sufficient under all the decisions on consider trivial, the estimate stated in the that subject. It meets the requirements total was what the engineer intended it to stated in City of Kirksville v. Coleman, 103 be, and was thoroughly understood by the Mo. App. 215, 77 S. W. 120. The reference council, for whose benefit and consideration to another ordinance for the grade was suf- the estimate is made. City of Booneville v. ficient. It was not necessary that the plain- Stephens, 238 Mo. 339, 141 S. W. 1111; Webb tiff should introduce the latter in evidence. City v. Aylor, 163 Mo. App. 155, 147 S. W. [4, 5] As to the second ground, when de- 214. By the terms of the statute itself it is fendant states there was no estimate filed, a paper to be "submitted to the board of he evidently does not wish to be understood aldermen." literally, but rather that the paper filed was not a proper estimate. His position is that, if it be considered a proper estimate, the contract price was in excess of it, and thereby the tax bills were invalidated. The estimate was made by the city engineer; that being one of his duties under the statute. Section 9407, R. S. 1909. It stated approximately the number of feet or yards in each of the following divisions of the work, placed in a horizontal column, viz., paving brick, curbing, sand, excavation, and oak headers; and estimated the number of yards or feet in each, and the cost per yard or foot. These figures were cast up and the sum placed in a right-hand "total" column. In addition to this, and as part of it, was an item of $600 for superintending and engineering. The whole, when cast up, was set down at $19,391.13. But when this is examined it is found that, by multiplying the number of yards or feet of the separate items by the estimated price of each, it will only make $16,002.44. This discrepancy of more than $3,000 was explained by the engineer to the council as arising from the fact that he included in the estimate and in the total an item of 20 per cent. on the estimated cost of each division of the work. He omitted to state that item on the face of the paper. But the fact is there was no intention to deceive, conceal, or mislead, and the city council understood it. In truth, an estimate had been stated to the council several days before the one in controversy was filed, and the members had called his attention to the fact that he had only estimated the bare cost, without putting in anything for labor, waste, breakage, and the contractor's costs for superintendence, etc. It was for this very necessary purpose that the addition was made. This addition was made to an item of $600, but, instead of putting it down as $720, the figures "120" were placed above the main figures "600," and the total of the whole matter was carried out properly to the total column, except in a small matter of calculation which we will notice. The engineer testified he had made a mistake of $36.31 in adding to the cost of "oak headers," and of $151.89 in adding to the cost of the excavation, which should reduce the total from $19,391.13 to $19,202.93. We do not attach enough importance to an honest error of calculation, amounting, comparatively, to a small sum, perhaps not appreciable at all,

[6] The next point of defense is that the grading was not done as established and required by the ordinance. The proposition defendant undertook to establish under this objection was that the grade of the street as paved by the contractor varies from the ordinance from 1 to 24 inches. These variations were at different points named in the evidence. The maximum was at a point midway between two streets. At this point the abutting lots set above the grade named in the ordinance between 6 and 7 feet; but, as actually graded, only between 4 and 5 feet. The contractor was paid by the yard, and by lessening the depth of the cut the abutting property was benefited and the owners have less to pay. The ordinance contained these provisions:

"All work shall be done under the supervision and to the satisfaction of the city engineer." "The engineer shall furnish all lines and grades and mark same on the ground as needed. The contractor shall carefully preserve all such marks, and, if reasonable care is not exercised in preserving same, the contractor will be charged up with the cost of resetting the same."

The engineer set the grade stakes at this point (Johnson v. Duer, 115 Mo. loc. cit. 377, 21 S. W. 800), and the contractor did the work in accordance with them, without knowing they made any change. So therefore, with no harm to the property owner, with no profit to the contractor, or bad faith in him, and with a finished work as serviceable as if the variation had not occurred, we find no reason either within the bounds of the strict rules of law which properly govern cases of this character, or of fairness to the contractor, who is not shown to have either intended to harm, or have actually harmed, the property owner. Nor was there any intention to harm the general public, nor has it, in fact, been harmed by the result produced. We regard the case of Trimble v. Stewart, 168 Mo. App. 276, 153 S. W. 1086, as much like the present in the particulars here discussed and the remarks in the opinion as especially applicable to many of the facts here considered. By reference to that case it will be seen that the cases therein cited from the Supreme Court of Porter v. Paving Co., 214 Mo. 1, 20, 112 S. W. 235, St. Louis v. Ruecking, 232 Mo. 325, 134 S. W. 657, and Platte City v. Paxton, 141 Mo. App. 175, 124 S. W. 531, from this court, fully sustain the decision. In public work of this nature preciseness is scarcely possible, and substantial compliance is all

303, 16 S. W. 491; Galbreath v. Newton, 30 | brick. These considerations, applied to the Mo. App. 380; Gratz v. Wycoff, 165 Mo. App. slight discrepancy of a little more than one196, 145 S. W. 870; Stover v. Springfield, 167 half inch of depth of sand (the average) after Mo. App. 328, 152 S. W. 122. the long period intervening, leave the evidence without substantive force to overthrow a claim for money expended for material, work, and labor, if otherwise valid.

[7] Another ground taken against the validity of the bills is that the sand foundation for the brick did not comply with the contract requiring it to be 4 inches in depth after being rolled. From the nature of such work it would be impossible to get a foundation of precisely 4 inches, varying neither more nor less. And it would be practically impossible to get as much as 4 inches at every part, unless a much greater quantity was put down. In such instances as this the law that a substantial compliance is all that may be required is both wise and just.

[8] We do not regard the record as disclosing any evidence of a character to show there was no substantial compliance. Defendant stated that he measured in one place while the work was in progress, and found only 234 inches of sand. We count this as nothing. At that time there might have been a spot not yet filled which no one could say at the trial, more than four years afterwards, was left at that depth. There was other evidence introduced by defendant showing that at 32 places the brick had been removed and the depth of the sand measured. At some of these points the depth was more than 4 inches, at others just 4, and at others less than 4, at one point falling as shallow as 14 inches; but the average was 3.3125 inches. Now these measurements, instead of being taken at the time the work was completed, or in a reasonable time thereafter, were not made until the lapse of more than four years. During this period the street had been subjected to the travel and traffic of the city. The interstices between the brick were not filled with impervious material, but with loose sand, and therefore the underlying foundation of sand was subject, in greater or less degree, to the rains, and possibly to the freezing and thawing of the earth only 8 inches underneath. It is common observation that, even with cement and stone foundation for city paving, a less time than elapsed here will be sufficient for traffic to make the street uneven, "billowy, or wavy." The worthlessness of this evidence may be made clear by the statement that a single course of brick (4 inches) was all there was to protect the sand from the traffic and the elements; and a 4-inch course of sand was all there was to protect the brick from the necessarily softened earth underneath. The cracks between the bricks, as already stated, were not filled with adhesive or impervious material. So, therefore, heavy traffic would tend to press the underlying sand upward between the brick, and thus much of it-in course of time practically all of it-will be carried away. Indeed, one of defendant's witnesses stated that in one instance he found where the underlying earth was "oozing up" between the

[9] The ordinance provided as follows: "Whenever the parkway back of the curb needs filling to bring the same to proper grade the surplus dirt excavated out of the street to be paved shall be deposited therein in a uniform manner and the surface of the same when filled to the proper height shall be left to a uniform and even surface."

Other parts of the ordinance provided that the dirt need not be hauled a greater distance than 1,000 yards, unless there was extra pay. Defendant contends there was no compliance with this part of the ordinance. But there was a failure of proof in this respect. The chief reliance here is that at one place the parkway was neglected, and that 83 loads of dirt were thrown in there by Costello so as to secure a foundation for a sidewalk. Passing by any question whether the word "parkway," as used in the ordinance, meant the sidewalk space, we find that at this place there was a ditch, which was stated by some of the witnesses to be 20 feet deep. It was perhaps impracticable to fill this, or to secure it when filled. At any rate, there was no evidence to show that the failure to fill this was a failure to substantially meet the terms of the ordinance. There was nothing to show that the surplus dirt from this street was not used at other places. Furthermore, we are of the opinion that clearly the ordinance did not contemplate the filling of a ravine ranging from 10 to 20 feet in depth. As illustrative of our position in this respect, see Excelsior Springs v. Ettenson, 120 Mo. App. 215, 230, 231, 96 S. W. 701.

[10] The next objection to the bills is that the sand foundation was not smoothed off and curved to the subgrade of earth with a "templet, reaching from curb to curb, as required by the ordinance." The evidence shows that the proper smoothing and curve was made, and, as the engineer stated, with one kind or character of templet; but, on the trial court reminding him that it did not reach from curb to curb, as prescribed in the ordinance, he agreed it failed to meet that requirement. But it was shown that to construct a board templet with the proper curve reaching 24 feet across the street and resting on the curbing on each side, of sufficient strength to prevent sagging in the center, and yet sufficiently light so as to be movable over the surface without tearing out the curbing, was altogether impracticable. So, therefore, under the directions of the city engineer, boards were used which were not in length equal to the width of the street. No harm came of this deviation from the impracticable to the practicable, and no effort was made to avoid securing the precise

object required by the ordinance; and mani- | Waller & Holz Company. Judgment for festly there was no cause in this to support plaintiff, and defendant appeals. Affirmed. a claim of invalidity of the tax bills.

[11, 12] Coming to the last of the foregoing objections, viz., that the curbing was not troweled off "with a neat coat of cement," as required by he ordinance, we find that this was not done. There was no showing of guaranty of the work, or of its maintenance, and there is a failure of evidence to show that the curbing as a whole was in bad condition. Some witnesses stated one or more places where it was cracked or otherwise defective. But, considering the entire length and the time since its construction, we think these defects unsubstantial; and they are not made a part of defendant's objection. While this will not defeat the entire tax bill (Porter v. Paving Co., 214 Mo. 1, 17-19, 112 S. W. 235), the fact remains that the finish called for was not given; and the record does not show what the cost of such finish would be, and we therefore are without data whereby we may ascertain what sum should be deducted from the price. The cost of the curbing is stated in each tax bill to be $20.63. In such circumstances we have concluded that plaintiff's case failed in that respect.

We will therefore strike that part from plaintiff's claim (Haag v. Ward, 186 Mo. 325, 348, 85 S. W. 391; Neil v. Ridge, 220 Mo. 233, 257, 119 S. W. 619), and reverse the judgment, and remand the cause, with directions to enter judgment for plaintiff for the aggregate amount of the tax bills, less the sum claimed for curbing. All concur.

BLAKELY v. WALLER & HOLZ CO.
(No. 11127.)

(Kansas City Court of Appeals. Missouri.
May 18, 1914.)
BROKERS (8 65*)-ACTION FOR COMMISSIONS-
DEFENSES-DOUBLE DEALING.

Defendant, having procured a farm, placed

it for two weeks in the hands of certain brokers as his exclusive agents to sell it, and during the same time requested plaintiff to find a buyer if possible. Plaintiff endeavored to sell it to the ultimate purchaser during the limit of the brokers' exclusive agency, but failed, and after such agency had ceased defendant requested plaintiff to sell the land at a specified price. Plaintiff continued his efforts with the purchaser, during which time defendant, without plaintiff's knowledge, sent another, who succeeded in selling the land to the purchaser at a less price than plaintiff was authorized to offer it. Held, that defendant, by showing the exclusive agency of the original brokers and claiming that plaintiff did not act for them, but for himself or defendant, could not establish a defense of double dealing on plaintiff's part which would bar his right to commissions.

Omar E. Robinson, of Kansas City, for appellant. Ellison A. Neel, of Kansas City, for respondent.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.*]

ELLISON, P. J. This action is to recover a commission for the sale of defendant's farm to Mr. Galbreath. The judgment was against defendant. Plaintiff owned land himself and likewise acted as agent for others in selling their lands, receiving compensation at the rate of $1 per acre as his commission. He owned a farm near La Plata, Mo., and he resided in that place. He traded this farm to defendant for flats in Kansas City, Mo.; the deal being closed in the latter place, September 21, 1911, in the office of Shaw & Williams. It seems defendant, according to testimony in its behalf, immediately placed the farm in the hands of Shaw & Williams for two weeks, as exclusive agents to sell it, though, through its president, it also requested plaintiff to find a buyer on his return home. Plaintiff endeavored to sell it to Mr. Galbreath during the two weeks' limit of the Shaw & Williams exclusive agency, but failed. Much is made of this agency of Shaw & Williams and of the fact that plaintiff first solicited Galbreath during that time as their agent and not defendants. We think it of no importance, further than being part of the history of the case.

We must accept the evidence in plaintiff's behalf as the facts of the case, and from that it appears that, ten days or more after Shaw & Williams' agency had ceased, defendant, on October 21st, wrote plaintiff to sell the land and stating the price to be $60 per acre, but asking him to get an offer. Plaintiff continued his efforts with Galbreath, and then, on the 1st of November, he became a resident of Kansas City, at which place he from time to time talked with defendant's president, telling him of Galbreath's offer of $40 per acre and that he felt confident Galbreath would finally buy. In a few days after this defendant (without plaintiff's knowledge) sent one Schweizer to La Plata (who was really a dormant part owner), and he sold the farm to Galbreath for $46.25 per acre. The testimony of Galbreath and the correspondence between him and plaintiff discloses the latter's continuous effort to sell. Finally, Galbreath, in a letter to plaintiff of November 28th, spoke of Schweizer, and finally on December 10th wrote plaintiff his first information that the sale had been made by defendant.

By calling to its aid the evidence tending to show the exclusive agency of Shaw & Williams for two weeks, and then claiming that plaintiff did not act for them, but for himself or defendant, the latter makes a lame

Appeal from Circuit Court, Jackson Coun- effort to build up a theory of double dealing ty; Thomas J. Seehorn, Judge. -the service of two masters-by plaintiff which bars him of a recovery under the rule

Action by James T. Blakely against the

If

We

many times asserted in this state. Corder ELLISON, P. J. Defendant issued to v. O'Niel, 207 Mo. 632, 106 S. W. 10; De plaintiff its policy of dwelling house burSteiger v. Hollington, 17 Mo. App. 382. glary insurance in the sum of $1,000. Plainwe were to allow defendant to make this tiff was absent from his home "on a vacaclaim at this time, it would be giving him tion" from June until September, 1911, an advantage of his own wrong. If he had though his son occupied the premises, at given Shaw & Williams an exclusive right least to the extent of sleeping there at night. for two weeks, he had committed the wrong Shortly after plaintiff's return he missed a of engaging plaintiff within that time. clock; then afterwards a bottle of wine; are unable to understand why he should be then, in a short time, when he wanted to use allowed to reap the benefit of a rule he join- it, a thermos bottle. Afterwards, during a ed in violating. But, aside from that, plain- rain, he missed his umbrellas. These things tiff's efforts to bring about the sale contin- were missed, as expressed by plaintiff while ued, at defendant's special instance, long aft- testifying, "all one after another." For er the exclusive agency had ceased. them he presented a claim to the defendant, and was paid $20.55. He thereupon executed a release for "burglary or theft committed between the 1st day of June, 1911, and the 31st of August," which was "in full payment and in compromise settlement of the claim."

The action of the court on the instructions was in every way proper, save, perhaps, in view of the evidence, being too liberal for

the defendant.

He testified that "shortly after" receiving payment of the above-mentioned sum, "about the third week in September," he made the BRADY v. NEW JERSEY FIDELITY INS. first of a series of discoveries of other losses. CO. (No. 11136.) First was a Thesaurus Dictionary; then (Kansas City Court of Appeals. Missouri. afterwards a silver mug; then, on the May 18, 1914.) weather getting a little cooler and he needed warmer footwear, he could not find his hightop shoes; then afterwards another dictionary was missed; then afterwards, about the middle of October, the weather getting still cooler, he sought his heavier clothing, and could not find them; then he looked for other clothing, and found various articles had been taken, the total value being $270, for which the present action was brought.

[1, 2] The record does not show more than one burglary. Whatever claim plaintiff had under his policy was for a loss between June 1 and August 31, 1911. The claim for this loss depended for amount on the number of articles and their undetermined value. It was therefore unliquidated.

The judgment being manifestly for the right party, it is affirmed. All concur.

1. ACCORD AND SATISFACTION (§ 8*) PART PAYMENT-LIQUIDATED INDEBTEDNESS.

Payment of part of a liquidated debt is not a satisfaction of the whole, unless made and accepted upon some new consideration.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 60-65, 84, 87; Dec. Dig. § 8.*]

PART

Such rule cannot apply to an unliquidated indebtedness, but the question then is whether the payment was, in fact, made and accepted in satisfaction.

2. ACCORD AND SATISFACTION (§ 10*) PAYMENT-UNLIQUIDATED INDEBTEDNESS.

[Ed. Note. For other cases, see Accord and Satisfaction, Cent. Dig. §§ 67-74; Dec. Dig.

10.*]

3. INSURANCE (§ 579*)—ADJUSTMENT OF Loss -PART PAYMENT-MISTAKE-CARE TO AVOID MISTAKE.

Where a claim upon a burglary insurance policy for a single burglary was adjusted, and the loss paid according to the terms of the policy, and a release in full payment was executed, the settlement, in the absence of fraud, could not afterwards be opened, and the insurer held to further liability because of the omission of certain losses by mistake, unless the mistake was unavoidable; and, where insured did not discover other losses of wearing apparel until he had occasion to use them more than a month The rule that a payment of a part of a later, there was such a lack of ordinary care as liquidated debt will not discharge the whole would prevent his further claim under the pol-naturally cannot apply to an unliquidated icy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1417, 1419; Dec. Dig. § 579.*]

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Cyrus T. Brady against the New Jersey Fidelity Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

"It is, no doubt, true that the payment by a debtor of a part of his liquidated debt is not a satisfaction of the whole, unless made and accepted upon some new consideration; but it is equally true that, where the debt is unliquidated and the amount is uncertain, this rule does not apply. In such cases the question is whether the payment was in fact made and accepted in satisfaction." Baird v. U. S., 96 U. S. 430, 24 L. Ed. 703.

demand; "for, if the claim is unliquidated, it cannot be known, with any certainty, what is the amount really due." Riggs v. Association, 61 S. C. 448, 457, 39 S. E. 614, 617. That was said in regard to an unliquidated loss under an open insurance policy, the decision being that, if one accepted a less sum than the amount of the policy in satisfaction, he cannot maintain an action for a balance.

Ben Howard, of Kansas City, for appellant. Yates & Mastin, of Kansas City, for respondent.

[3] In Soper v. Ins. Co., 120 Mass. 267, it was decided that where a settlement was made by parties to marine insurance of their

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