materials and labor to the defendant") would be to give to defendant the benefits of his own wrongful conduct. So that we have no hesitancy in saying that in a quantum meruit action brought by a contractor, where there has been a breach of the contract by the owner, the contractor is entitled to have an instruction which would at least entitle him to recover the reasonable value of the materials and labor furnished, at least up to the contract price. We say at least up to the contract price, because this is as far as the plaintiff's instruction goes in this case, and it is not necessary to discuss what is the real measure of his recovery. Thus in McCullough v. Baker et al., 47 Mo. loc. cit. 402, 403, it is said: v. Kast, 171 Mo. App. loc. cit. 311, 312, 157 We therefore conclude that there was no error, of which defendant could complain, in plaintiff's instruction which permitted the plaintiff to recover the reasonable value of the materials and labor furnished, to the extent of the contract price. As to whether he was entitled to recover such reasonable value, upon a breach of the contract by defendant, without reference to the contract price, is, as said, not a question in this case. [4] III. But defendant is claiming that plaintiff breached the contract, and on that "The suit is not founded upon the contract. theory he asked, among others, instruction The plaintiff waives that and sues upon the B, which was refused. Defendant was enquantum meruit. If he is entitled to recover titled to have his theory of the case presentat all, he is entitled to recover a reasonable compensation for the work actually done. That ed to the jury, if there was evidence suffiis the rule where the contractor is prevented cient for that purpose, and hence the necesfrom completing his job by the unwarranted acts and defaults of the other party. In such a case he is not restricted to a pro rata share of the contract price. He may either sue upon the contract and claim damages for a breach of it, or he may, as in this case, waive the contract and sue for the reasonable value of his work." In Ehrlich v. Life Insurance Co., 88 Mo. loc. cit. 257, Black, J., said: "So a contractor who has been prevented from completing his job may waive the action for damages and sue for the value of the work done and materials furnished, and he is not in such case restricted to a pro rata share of the contract price. McCullough v. Baker, 47 Mo. 401; Mitchell v. Scott et al., 41 Mich. 108 [1 N. W. 9681; Fitzgerald v. Allen et al., 128 Mass. 234." With a preciseness characteristic of the man, Rombauer, P. J., in Kelly v. Rowane, 33 Mo. App. loc. cit. 443, thus summarizes the law: sity of passing upon this instruction. The instruction, after reciting numerous alleged shortcomings of the plaintiff under the contract, thus concludes: "And the defendant has been damaged thereby, then you should assess defendant's damages at the difference between the reasonable value to the defendant of the work and materials so furnished and installed which do not comply with the terms of said contract and the amount it will reasonably cost the defendant to install materials which will comply with the terms of said contract." As stated above, there has been such expressions as "reasonable value to the defendant" used in several of our cases. We are speaking now of that line of cases wherein the contractor has breached the contract and has sued in quantum meruit for materials and labor furnished. We believe, however, that the true rule of recovery in such cases is best expressed by Wagner, J., in Eyerman v. Cemetery Ass'n, 61 Mo. loc. cit. 491, whereat it is said: from all the cases is that, where a party fails "The established rule extracted and deduced to perform his work according to the stipulations of his agreement, he cannot recover on the special contract; but if the services rendered by him or the materials furnished are valuable to the other party, and are accepted by such party, then he would be liable to pay the actual value of the work performed, or the materials furnished, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the agreement. There may be a recovery upon a quantum meruit, albut in such a case the petition must be groundthough the contract has not been complied with; ed on a reasonable value, and it must not be declared on the contract." "The law governing the rights of parties to building contracts in this state, although peculiar, is well settled. If a contractor is prevented by the unauthorized act of the owner from completing a building contract, he may recover in an action the reasonable value of his work and labor, regardless of the contract price, and is not restricted to a pro rata share of the contract price. McCullough v. Baker, 47 Mo. 401; Ahern v. Boyce, 19 Mo. App. 552. On the other hand, if he voluntarily abandons the contract, he may recover the actual value of the work and materials, not exceeding the contract price, less such damages as have resulted to the other contracting party from the breach of the contract. Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313. Under the issues made by the informal pleadings of the parties, and the evidence adduced in support, the case in its nature was to be gov- So, too, in almost the same language Ray, erned by one or the other of these propositions. J., announces the rule in Davis v. Dawson, If the plaintiff was prevented by the unauthorized act of the defendant from completing his contract, his rights and extent of recovery were governed by the first class of cases above cited; if he voluntarily abandoned it, by the latter." This rule is further recognized to the fullest in Eyerman v. Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Car Co. 67 Mo. loc. cit. 314. Instruction B, offered by defendant and refused by the court, is broader than the rule, and was rightfully refused. The case proceeded upon the theory that defendant had taken over and was using the heating plant. Such is recognized in defend ant's instructions. Their wording so shows. Likewise the evidence so shows. If the plant was of any value to the defendant, then, even on the theory that plaintiff had breached the contract, the plaintiff, under the rule, was entitled to recover "the actual value of the materials and labor furnished, not exceeding the contract price, after deducting for any damages which had resulted from a breach of the agreement." alleged defects in the boilers furnished. There was no error in this regard. The contract and specifications were in evidence. This contract called for the very boilers which were installed, and the alleged defects were mere peculiarities of the boilers which were selected by the contract. We mean by this that the boilers, which were to be "Kewanee No. 116," were in fact of that pattern, and had no structural defect for boilers of We have discussed this point because we that pattern. If there were defects, as comdid not feel that the matter should go un-pared with other patterns of boilers, there noticed, and because the same matter was were no defects as compared with the paturged, as against plaintiff's instruction, and tern or style of boiler called for by the conwas therefore the chief contention of defend- tract. There is no substance in this contenant. It would have been sufficient to say tion. that, by instruction 4 asked by the defendant, the defendant had a different rule in mind. This instruction concludes: [7] VI. The finding of the jury in this case settles many things, thus: (1) That defendant prevented the plaintiff from completing "And that defendant has been damaged there- the contract; (2) that the boilers furnished by, then you should assess the defendant's damages at the difference between the reasonable were in accord with the contract; (3) that value of the work and materials so furnished the plant when completed would heat the and installed which do not comply with the building as per the contract, as submitted terms of said contract and the amount it will by plaintiff's instruction No. 3; (4) that defendant had not been damaged by the work reasonably cost to install materials sufficient to make said apparatus comply with the terms of said contract." This instruction with slight modification was given. Such instruction says nothing about "reasonable value to defendant," and conforms to the rule in Eyerman's Case, supra. But this is not all. The court actually gave defendant's instructions 5 and 7 (as modified by the court), which after the modifications contained the very thing that defendant was contending for; i. e., that the reasonable value to be recovered should be "the reasonable value to defendant." done. But it is urged that the verdict is excessive, in that it includes 10 per cent. in addition to the actual value of the material and labor furnished. The evidence does show that the items which make up the plaintiff's bill were increased by 10 per cent. as a builder's profit. It does not show that such was a reasonable profit. By this we mean there is no evidence on the question. The court, at the instance of the defendant, instructed the jury that they should not allow a builder's profit. This on the theory, no doubt, that it was an action in quantum meruit. That the jury in the face of the instruction did allow most of this 10 per cent. is evident. The amount claimed in the itemized account is $9,932, which included the 10 per cent. Leaving out the added 10 per cent. the amount would be $9,029. The admitted payment was $8,175; the verdict was $1,777.35. It is not denied by counsel that this 10 per cent. builder's profit entered into the verdict, but counsel for plaintiff say that it was properly included in the verdict under the law, notwithstanding the court's instruction in this case. In other words, they contend that the instruction given was wrong. We have no ruling in this state upon the question. We have examined the list of cases cited by learned counsel for plaintiff, but to our mind they do not reach the question. When the owner breaches the contract under the holdings in this state: (1) The contractor can sue upon the contract and recover his damages, which would include a profit to him, if by the terms of the contract he would have made a profit; or (2) he can sue in quantum meruit for the [6] V. It is urged that the court erred in reasonable value of the materials and labor [5] IV. Defendant urges that there was error in refusing its instruction C. This instruction was on the theory that it devolved upon plaintiff to show that defendant prevented the completion of the contract, and that plaintiff must so show by the greater weight of the evidence. Defendant was entitled to an instruction along this line. The plaintiff's petition, whilst in quantum meruit, proceeded upon the theory of defendant having breached the contract. But we think this error was harmless in this case. The plant had been practically completed when defendant, through Dr. G. M. Saymen, wrote a letter demanding that the two boilers installed for the plant be taken out. The contract in its specifications called for the very boilers which had been installed, and which were ordered out by defendant. Under the documentary evidence in this case (the contract and the letters), the jury could not have done otherwise than to find that defendant by its order to remove the boilers prevented the completion of the contract. Under these circumstances the refusal of the instruction was harmless. (No. 18898.) (Supreme Court of Missouri, Division No. 1. March 4, 1918.) COURTS LAWS. 231(48) JURISDICTION-REVENUE appellate jurisdiction in cases involving the conConst. art. 6, § 12, giving the Supreme Court struction of revenue laws, does not authorize appeals in proceedings to enforce drainage benefit assessments, although such assessments are collected as are other taxes. such a contractor add 10 per cent. to the STATE ex rel. BROUGHTON v. OLIVER. materials and labor furnished in such a suit. We think not. The very character of his suit precludes the idea. Reasonable' value of materials and labor furnished does not mean an additional 10 per cent. for the contractor's profit. Such he might have recovered in action for damages for breach of contract, provided the contract limit gave him a profit. We do not think it recoverable in an action in quantum meruit, which action is the one chosen by the plaintiff. It is suggested by counsel that this would enable owners to defraud contractors, and debar them from recovering for their trouble and responsibility in building contracts. The answer is that, if the contractor had in fact a profit in his contract, he can easily recover it in an action on the contract. Having, as here, chosen an action in quantum meruit, he is bound by his course. Of course, in such action the contractor is not concluded by what he paid for the material and labor furnished, if he shows that the reasonable value exceeded what he paid therefor. Borden v. Mercer, 163 Mass. loc. cit. 9, 39 N. E. 413. So, too, if the contractor had put an item in his account for his services rendered in assembling the material and labor and superintending the work, and made proof of the reasonable value thereof, we might have a different case. In this case we have no such conditions. We have the bald fact, standing out alone, that there had been added a "builder's profit" of 10 per cent. to each item of account, covering both material and labor. The verdict is therefore excessive. Fortunately, however, the facts are at hand from which the verdict can be cured by remittitur, and we think it should be so cured. There are other matters urged by defendant, which we have examined; but we have mentioned all that we think have substance. Purging plaintiff's account of $9,932 of the builder's profit, we have left in round figures $9,029. Deducting $8,175, the admitted credit, we have $854 as the real balance. To this should be added interest at the rate of 6 per cent. for five months (the time from filing suit to date of verdict), which would be $21.35. Under the law (with the present record facts), the verdict should have been $875.35 instead of $1,777.35; so that, if the plaintiff will within 10 days enter a remittitur in the sum of $902, the judgment will be affirmed (as of the date of its original entry) in the sum of $875.35, but, should plaintiff decline to enter the remittitur, the judgment should be and is reversed and the cause remanded. Appeal from Circuit Court, New Madrid County; Frank Kelly, Judge. Proceedings by the State of Missouri, on the relation of Henry E. Broughton, against R. B. Oliver. Judgment for plaintiff was appealed to the Springfield Court of Appeals which certified the case to the Supreme Court (186 Mo. App. 272, 172 S. W. 75). Case retransferred to Springfield Court of Appeals. Oliver & Oliver, of Cape Girardeau, for appellant. James R. Brewer and Henry C. Riley, Jr., both of New Madrid, for respond. ent. GRAVES, J. This case was certified to this court by the Springfield Court of Appeals (186 Mo. App. 272, 172 S. W. 75) on the ground that it involved the construction of the revenue laws of the state. The applicable clause of the Constitution conferring appellate jurisdiction upon this court reads, "in cases involving the construction of the revenue laws of this state." The relator is the collector of New Madrid county. By his suit he seeks to enforce a lien upon lands owned by defendant for certain special benefits assessments directed by the county court of that county to be charged against such land to meet the bonded obligation of drainage district No. 18. which district was organized under the county court statutory provisions for the organization of drainage districts. No constitutional questions are raised, and the amount of the several assessments sought to be collected does not bring the case within our jurisdiction. In fact, it is certified here solely on the ground that it involves "the construction of the revenue laws of this state." Have we jurisdiction? I. In some two or three cases the Springfield Court of Appeals has ruled that the enforcement of these special benefit assess ments does involve "the construction of the revenue laws of this state." Besides the case at bar, and another one on our present docket, we have had the case of State ex rel. v. Redman, 190 Mo. App. 300, 176 S. W. 714; Id., 270 Mo. 465, 194 S. W. 260. We assumed jurisdiction in the Redman Case, BLAIR, J., concurs. WOODSON, J., con- supra, with this remark: "It is sufficient to curs in result. BOND, P. J., absent. say that constitutional questions were duly For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes where the money raised by the tax goes into general fund of some city or town, and is applithe state treasury, or the county treasury, or the cable to any person to which the legislative body of such state, county, or town may choose to apply it; and is not intended to apply to local assessments, where the money raised is to be expended on the property taxed. These local assessments are not necessarily, under our Constitution, apportioned by reference to the value by the value of the benefit which the improveof the property assessed, but may be regulated ment to which the money is devoted is expected to confer on the proprietor." So, too, in Morrison v. Morey, 146 Mo. loc. cit. 564, 48 S. W. 634, speaking of assessments in a levee district, and speaking of a levee district, this court said: "But while it is a public subdivision of the state, and not a private corporation, it does not follow that the money to be raised from the landowners to carry out the objects intended is a tax. It is an assessment which is justified by the benefit, public and private, conferred. The cost of the abatement of nuisances, for the construction of sewers, or for the improvement of a street may be assessed against the property benefited, notwithstanding the public and the owner are both interested. As a tax it would be 3, art. 10), and because not in proportion to unconstitutional, because not uniform (Const. the value of the property (Const. § 4, art. 10), and because it is prohibited by the limitations of section 12 of article 10 of our Constitution, but, being an assessment of benefits and in no sense a tax, it is a constitutional exercise of the power of the state." lodged in the answer." The Court of Ap-ited to taxation for general purposes alone, peals certified the case here upon both grounds, and we assumed jurisdiction with the remark above quoted. We thought then (as the writer of the opinion in this court in the Redman Case), and think now, that but for the constitutional questions lodged in the Redman Case this court would have been without jurisdiction; this for the reason that laws providing for benefit as sessments are not "revenue laws of this state" within the meaning of section 12 of article 6 of the Constitution. These are laws which provide a means of paying for mere local improvements, and should not be classed with the "revenue laws of this state" so as to fix jurisdiction in this court. When we speak of the "revenue laws of this state," we have reference to those laws by which revenue is raised for purely public governmental functions, and not to laws the principal purpose of which is to furnish a means of payment for mere local improvements. To illustrate: The state grants power to municipalities to raise revenue, by taxation, with which to run the municipality, and such might be properly denominated a revenue law of this state, but it would hardly do to say that, because the state has said to a city that you may improve your streets by means of special benefit assessments, this would make such a law a revenue law of this state within the meaning of the constitutional provision supra. In drainage district matters the state authorizes the formation of the districts, and further authorizes the assessments of benefits in order to raise money with which to make the improvements, but this does not make such laws "revenue laws of this state" within the constitutional provision aforesaid. If so, then, when the state authorizes cities to improve their streets and boulevards by means of special benefit assessments, such laws would likewise be a "revenue law of this state." Such laws, like the drainage district låws, raise money to be expended for a quasi public purpose, but there is a difference between such laws and the laws which provide for the raising of money for purely public governmental purposes. It is to the latter class that this constitutional provision refers, and it was this we had in mind when we stated in Redman's Case, supra, that the constitutional questions duly lodged in the answer sufficed to fix our jurisdiction in that case. This court has never viewed special assessments laws in the light of revenue laws, as such laws are usually understood. In the very early case of Egyptian Levee Co. v. Hardin, 27 Mo. loc. cit. 496, 72 Am. Dec. 276, we said: "That provision of our state Constitution which requires taxation to be proportioned to the value of the property on which it is laid is only applicable to taxation in its usual, erdi The writer of the opinion in this case has collated all the previous cases in this state, and they may be seen by a reference to the opinion. The distinction thus drawn between taxes (provided for by the revenue laws of this state) and assessments for benefits (as provided for in levee and drainage districts laws) has been consistently followed in all subsequent cases. Kansas City v. Bacon, 147 Mo. loc. cit. 282, 48 S. W. 860; City of St. Joseph v. Owen, 110 Mo. loc. cit. 455, 19 S. W. 713; Land & Stock Co. v. Miller, 170 Mo. loc. cit. 252-257, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727; Construction Co. v. Ice Rink Co., 242 Mo. loc. cit. 255–256, 146 S. W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200; Levee District v. Railroad, 240 Mo. loc. cit. 632, 145 S. W. 35, 39 L. R. A. (N. S.) 543; Drainage District v. Turney, 235 Mo. loc. cit. 90, 138 S. W. 12; State ex rel. v. Drainage District, 269 Mo. loc. cit. 458, 190 S. W. 897. In 2 Cooley on Taxation (3d Ed.) p. 1154, the distinction between taxes and special assessments is thus clearly drawn: "The distinction between them and ordinary taxation has thus been pointed out in a recent land; it cannot, as a tax can, be made a personcase: 'A local assessment can only be levied on al liability of the taxpayer; it is an assessment on the thing supposed to be benefited. A tax is levied on the whole state or a known political subdivision, as a county or town. A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a continuing burden, and of procedure found in the general revenue laws. It follows that this court is without jurisdiction in this case, and the cause should be retransferred to the Springfield Court of Appeals for final disposition. All concur, except BOND, P. J., absent. time, and without it government cannot exist; a local assessment is exceptional both as to time and locality; it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the Legislature, and is an enforced contribution to the public well- STATE ex rel. BATES, Collector of Revenue, fare, and its payment may be enforced by the v. MACKIN. (No. 19050.) summary method allowed for the collection of taxes. It is like a tax in that it must be levied (Supreme Court of Missouri, Division No. 1. for a public purpose, and must be apportioned by some reasonable rule among those upon whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.' Not all these differences are necessarily existent in every case, but in the main the characterization is as accurate as it is forcible." When the Constitution speaks of the "revenue laws of this state," as it does in section 12 of article 6, supra, it has reference to that body of laws by which funds for public governmental purposes are raised, and not to that law or body of laws by which are authorized the assessment of benefits to meet the expenses of given improvements. In other words, the two purposes make up separate schemes: (1) Revenues for public governmental purposes, and the assessment, collection, and expenditure thereof; and (2) special assessments and their collection and expenditure. It is to the first class supra that the constitutional provision under review applies, and not to the latter. March 4, 1918.) Appeal from Circuit Court, Ray County; Arch B. Davis, Judge. Proceedings by the State of Missouri, on the relation of Robert E. Bates, Collector of Revenue, against Bernard Mackin. Judgment for defendant, and plaintiff appeals. Case transferred to Kansas City Court of Appeals. Lavelock & Kirkpatrick and J. L. Farris, Jr., & Sons, all of Richmond, for appellant. M. M. Milligan, J. L. Milligan, and M. G. Roberts, all of Richmond, for respondent. GRAVES, J. This is an action to enforce certain assessments of benefits for a levee district in Ray county. There is nothing to give this court jurisdiction, unless it be held that a "construction of the revenue laws of this state" is involved. In State ex rel. v. Oliver, 201 S. W. 868, not yet officially reported, we have just held that the revenue laws of this state are not involved in cases of this character. The ruling in that case determines this case. Under the ruling in Oliver's Case this case should be transferred to the Kansas City Court of Appeals; and it is so ordered. All concur, except BOND, P. J., absent. CITY OF ST. LOUIS v. BASKOWITZ. (No. 18770.) 1. LICENSES DEALERS. March 4, 1918.) 6(13)-PoWER OF CITY—JUNK Under St. Louis City Charter, art. 3, § 26, cl. 5, giving power to license, regulate, or tax certain named occupations "and all other business trades, avocations or professions whatever," applies to one dealing in used bottles, whether his occupation be specifically named 2. STATUTES 195 - CONSTRUCTION - Ex or not. PRESS MENTION AND IMPLIED EXCLUSION. II. The Court of Appeals seems to bottom its judgment upon the theory that, because the law which provides for special assess (Supreme Court of Missouri, Division No. 1. ments also provides for the collection of such assessments as ordinary taxes are collected, this makes a construction of those laws the construction of "the revenue laws of this state" within the meaning of the Constitution. We cannot so view the matter. As shown, there are two separate schemes: (1) Revenue laws proper; and (2) special assessment laws. The mode of collection is but a method of procedure, and when that scheme of laws relative to special assessments provides for their collection as taxes are collected, such provision in the special assessment law just draws unto that law a method of procedure, so as to make it a complete law, and when such procedure is thus drawn to and made a part of the special assessment law, the construction of the procedure must be as if a part of the special assessment act, and not as if a part of the general revenue act. So that, if the special assessment acts do not fall within the constitutional provision without the procedure portion, they should not be said to fall within the constitutional provision simply because by express provision they have drawn unto themselves a method The maxim, "Expressio unius est exclusio alterius," has no application to a statute which shows a contrary intention upon its face. 3. LICENSES 7(3)-UNIFORM TAX-CLASSES-CONSTITUTIONALITY OF ORDINANCE. The provisions of St. Louis City Ordinance No. 24751, § 1605, relating to licensing of junk dealers, is not in conflict with Const. art. 10, § 3, providing taxes shall be uniform upon the same class of subjects, because it divides an occupation into different classes, if uniform to each class. DEALERS. as 4. LICENSES 7(1) POLICE POWER-JUNK The business of junk and secondhand dealers being of such character as to warrant police regulation, St. Louis City Ordinance No. 24751. exercise of such police power, as conferred by § 1605, providing for such regulation, is a valid charter (article 3, § 26). For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
