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State v. Pate.

from the account of an individual depositor to his own account was competent, as disclosing the means and method to which he resorted in endeavoring to conceal and cover his acts of conversion. They were likewise competent as showing the fraudulent and felonious intent necessary to a commission of the alleged crime.

The instructions offered by defendant, and refused by the court, declaring that the charge of embezzlement could not be sustained by proof that individual accounts had been falsified by entries showing overdrafts, were properly refused, because they single out certain isolated facts and give them undue prominence. These facts, as heretofore pointed out, were material and competent as tending to establish certain elements of the offense, and the instruction requested would have been calculated to confuse rather than to aid. This is particularly true in the instant case, because of what seems to have been defendant's theory that he did not embezzle from the bank, but, if at all, from the accounts of the depositors, and that the evidence on the whole tended to show only a falsification of the records, when, as above stated, it tended to show the offense charged.

Objections are also made to certain testimony given by the bank examiner, it being said that he was permitted to state as facts his own inferences and conclusions as to what defendant meant when he made certain statements in his presence. Upon a retrial of this cause the State should be permitted to detail in evidence the statements made by defendant in the nature of material admissions and confessions, but the witnesses should state only what he said, and not be permitted to testify to their own opinions, inferences and conclusions.

Because of the error in instruction No. 2 the judgment is reversed and the cause remanded. All concur.

Mullins v. Kansas City.

W. C. MULLINS v. KANSAS CITY, Appellant.

1. CITIES:

2.

Division Two, July 5, 1916.

Contracts: Exemption from Operation of Section 2778 by Freeholders' Charter. A city of one hundred thousand inhabitants or more is not, by the fact that it has framed and adopted a charter of its own, freed from the operation of Sec. 2776, R. S. 1909, requiring contracts of cities to be in writing. Section 9704 does not say that such charter shall supersede all laws of the State, but only such part of the organic laws then in force as govern and pertain to cities having one hundred thousand inhabitants or more, and section 2778 applies to all municipalities.

- Contract for Hauling Earth: Greater Distance than Anticipated. Plaintiff and the city entered into a written contract for the construction of an embankment to a settling basin for the city waterworks, and the city before the contract was executed pointed out to plaintiff a close-by hill, owned by it, from which the earth to construct the embankment might be obtained. The written contract provided that "it is expected that earth for the construction of the embankment will be procured on property owned by Kansas City, or on such property as the Board of Fire and Water Commissioners may secure," and that "the contractor agrees that there shall be no claim for extra work except as he may be directed by" said board "to do extra work;" and the statute required all public work to be done in pursuance to written contracts, entered into before the work was begun. After a part of the earth had been obtained from the near-by hill, it was discovered by the city engineer, who had the ultimate right of decision, that the earth therefrom was not of the proper quality out of which to construct the embankment, and thereupon the city purchased another hill and directed plaintiff to obtain earth from it to construct the rest of the embankment, whereby the distance of haul was increased 447 feet, which in turn increased the expense of the haul. Plaintiff contended the increased haul was not embraced within the contract, and the jury found as a fact that the board, protesting that it was included in the contract, orally agreed with plaintiff that if he would go ahead and finish the work he would be paid at its completion. He hauled the earth from the further hill, finished the embankment, and sues for the extra expense, having been paid in full according to the contract rates per cubic yard. While he sues

3.

Mullins v. Kansas City.

specifically for damages for breach of the contract, he contends for payment for the extra haul on a quantum meruit. Held, that there can be no recovery on the written contract, nor is the city estopped by the acts of the board from raising the invalidity of the oral agreement.

Estoppel: Contract: Liability for Extra Work. A city is not. estopped to deny its liability to a contractor by the oral promise of its proper committee that he shall be paid for extra work performed by him, where the statute specifically requires the contract for such work to be in writing. The doctrine of laches cannot be made to apply in the teeth of a statute.

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: Laches: In Face of Statute: Public Policy: Agency. Statute and charter provisions constitute powers of attorney to the officers of a city, be cnd which they cannot go, and those dealing with such special agents must be held to know the limitations placed upon their powers by those statutes and charter; and when the statute requires the contract for doing a public work to be in writing, the city is not estopped, by aches or otherwise, to deny its liability to the contractor for doing extra work that was not ir anticipation when the contract was made, by an oral promise of its proper committee, made after it was discovered that in order to complete the contract such extra work my be done, that if such extra work is done it will be paid for. Plain statutory requirements cannot be abrogated by estoppel.

Appeal from Jackson Circuit Court.-Hon. Frank G. Johnson, Judge.

REVERSED.

A. F. Evans, A. F. Smith and J. A. Harzfeld for appellant.

(1) If the hauling of earth from the more distant borrow pit was outside of and in addition to plaintiff's obligations under the contract, he would be entitled to compensation for the overhaul only upon showing a written agreement for such overhaul, signed by both parties to such agreement, and at a price agreed upon between him and the city in advance of the doing of the work, and in the absence of such showing plaintiff's action must fail. Sec.

Mullins v. Kansas City.

6759, R. S. 1899, now Sec. 2778, R. S. 1909; Cook & Son v. Cameron, 144 Mo. App. 137; Likes v. Rolla, 184 Mo. App. 296; Cotter V. Kansas City, 251 Mo. 229; Construction Co. v. St. Louis, 256 Mo. 341; State ex rel. v. Dierks, 214 Mo. 588; Municipal Securities Corp. v. Kansas City, 256 Mo. 268. (2) The contract executed by the plaintiff also expressly provides, substantially in the language of the statute, that the plaintiff shall not be entitled to make any claim for extra compensation for extra work unless the price for such extra work is "agreed upon in writing at the time but before such extra work is commenced." Plaintiff's contract is, therefore, of itself, an answer to any claim for extra compensation in this case. Plumley v. United States, 226 U. S. 545; Ahern v. Boyce, 19 Mo. App. 556. (3) Plaintiff's contract provided that "it is expected that earth for the construction of the embankments will be procured on property owned by Kansas City or on such property as the Board of Fire and Water Commissioners may secure." The earth on the property then owned by the city proving unfit for use in the embankments, the Board of Fire and Water Commissioners secured the ground adjoining the property then owned by the city, which was the nearest ground available for a borrow pit. Plaintiff was bound, under his contract, to haul earth from this new ground, and he is not entitled to exact compensation on that account. Wear Bros. v. Schmelzer, 92 Mo. App. 314; Wilson v. St. Joseph, 125 Mo. App. 460; Dearborn Co. v. K. C. Co., 188 Mo. App. 212. All negotiations had prior to the making of plaintiff's written contract were merged in that contract. Ijams v. Provident Society, 185 Mo. 499. Even if all prior negotiations were not merged in the contract finally executed, plaintiff could not base a claim upon the statements of any representative of the city unless it has been established that that representative was authorized

Mullins v. Kansas City.

to bind the city by his statements. Midland Lbr. Co. v. Kreeger, 52 Mo. App. 418; Walkeen Co. v. Johnston, 131 Mo. App. 699; Cook v. Cameron, 144 Mo. App. 146.

Fyke & Snider for respondent.

(1) As there was a written agreement for doing the work generally and there was a written order upon respondent making the change, no further written agreement was necessary because the city in its relation of the waterworks occupies the same position as a private corporation or private individual, and may be bound in the same way. The city by its board ordered respondent to do the work, accepted the benefit of his work, and recognized its obligation, after as well as before the work was done, to pay for it. In all fairness and justice it ought to pay. Water Co. v. Aurora, 129 Mo. 540; Steffen v. St. Louis, 135 Mo. 44; State ex rel. v. St. Louis, 145 Mo. 551; Simpson v. Stoddard County, 173 Mo. 421; State ex rel. v. Gates, 190 Mo. 540; Barree v. Cape Girardeau, 197 Mo. 382; Riley v. Independence, 258 Mo. 671; Heman v. St. Louis, 213 Mo. 538; McHugh v. Tacoma, 135 Pac. 1011; Contract Co. v. Tacoma, 140 Pac. 373; Audit Co. v. Louisville, 185 Fed. 349; Des Moines v. Welsbach, 188 Fed. 906; 2 Herman on Estoppel, 1365; Laird Norton Yards v. Rochester, 117 Minn. 114; Brantman v. Canky, 119 Minn. 396; Stifel v. St. Louis, 181 S. W. 577. (2) The specifications provide that bidders shall examine the topography of the ground and satisfy themselves as to the distance of the haul, etc. At the time the contract was let the city only owned one tract of ground which was close to the settling basin and the bids were made upon the theory that the earth would be taken from that hill. That it might be taken from some other property a further distance away was not within the

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