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Mullins v. Kansas City.

contemplation of the parties and therefore the city had no right without paying respondent the extra cost to send him to a further tract of ground to procure the earth with which to construct the settling basin. Koehring v. Muemminghoff, 61 Mo. 403; Crawford v. Elliott, 78 Mo. 497. (3) Moreover there is no rule of law that prevents parties from modifying or changing the terms of a written contract after it is made, as was done in this case. The specifications which provided that bidders should satisfy themselves as to the distance of the haul, etc., is as much a part of the contract as any other part of it, and the order directing respondent to abandon the hill where he had begun work, and where he had expended a large amount of money, was given after the original contract had been made, and after work had been commenced. The contract could not prevent the parties from changing the written contract by a subsequent parol contract-even if no written order had been given by the board directing the respondent to get earth from the other hill. Parties cannot by written agreement bind themselves not to subsequently waive or modify or change its terms by parol. Burnham v. Ins. Co., 63 Mo. App. 85. (4) Both sides offered evidence as to the reasonable expense of hauling the additional distance, and such reasonable cost was the proper measure of damages. Johnson Co. v. Ice Co., 143 Mo. App. 452. (5) Kansas City, being a city of more than one hundred thousand inhabitants, its charter adopted by the people is its organic law. Sec. 9704, R. S. 1909. Sec. 6759, R. S. 1909, does not apply to cities of one hundred thousand inhabitants, or more, and is not applicable in this case. Kansas City v. Oil Co., 140 Mo. 470; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 259; Brunn v. Kansas City, 216 Mo. 108. But if section 6759 is applicable, then it would seem that section 3728, R. S. 1909, is also applicable. It is a later statute. Miller

Mullins v. Kansas City.

v. Douglass Co., 204 Mo. 194. (6) The written order to respondent was sufficient written agreement on the part of the board to require him to make this extra haul.

FARIS, P. J.-Plaintiff sued defendant for damages alleged to have accrued to him for violation of a contract for the construction of a settling basin for defendant's waterworks system, and had judgment for $9000. From this judgment, after the usual motions, defendant appealed.

The facts shown by the record, so far as they are necessary to understand the conditions existing and the law applicable, are fairly simple, and except upon one point, to which we shall hereafter advert, are practically undisputed. They are, to-wit: That in November, 1908, defendant city was desirous of having constructed at Quindaro, Kansas, an additionaì settling basin for its municipal waterworks system, and to this end advertised for bids for the construc tion thereof. Plaintiff was a bidder for the doing of this work. His bid was accepted, and in due course he entered into a written contract with defendant for the doing of the same, under certain specifications and conditions, which we shall as to pertinent parts hereinafter refer to and set out.

It is an exceedingly difficult task to characterize the petition of plaintiff herein, since it is to an extent sui generis; we shall therefore, in fairness, set out below the salient parts thereof, and which set forth, as we understand it, the position of plaintiff. These are as follows:

"As an inducement to plaintiff to enter into said. contract said defendant, by the Board of Light and Water Commissioners, and the chief engineer of the water department, pointed out to plaintiff said tract of ground adjacent to said proposed settling basin,

268 Mo.--29

Mullins v. Kansas City.

which ground consisted of a large high hill, and represented to plaintiff, and agreed with him, that all the earth necessary to be used in the construction of the embankments aforesaid would be furnished by defendant, and should be taken by plaintiff from said hill, and relying upon said representation and agreement, and being induced thereby, plaintiff duly entered into a contract with defendant to haul and place the necessary earth in said embankment at fortyfive cents per cubic yard.

"Said hill so designated by defendant was covered with trees and brush, so that it was necessary for plaintiff to clear off said trees and brush, preparatory to commencing said work, and plaintiff did under the orders and directions of defendant clear off said land at great expense to himself, and did put the same in condition to remove the earth therefrom, and did excavate and remove therefrom and place in said embankment above twenty thousand cubic yards of earth.

"About April 1, 1909, plaintiff was, in violation of said contract, stopped by defendant from taking earth from said adjacent hill, and was, in violation of said contract, by defendant ordered and directed to procure the remaining necessary earth for said embankment from another tract of ground, which was eight hundred and fifty feet further away from said embankment than the hill first herein referred to, and plaintiff was compelled to, and did, under the orders and directions of defendant, procure the remaining necessary earth for said embankment, to-wit, about seventy-eight thousand cubic yards, from said distant hill, whereby plaintiff was put to great additional cost and expense in clearing the trees off said hill and in hauling the earth said additional distance, and was greatly delayed in the completion of said work, to his great damage, to-wit: in the sum of thirty thousand and six hundred dollars.

Mullins v. Kansas City.

"Wherefore, plaintiff prays judgment against defendant for said sum of thirty thousand and six hundred dollars."

Upon the trial of the case plaintiff did not offer in evidence the contract above referred to and which was entered into between him and defendant. At the close of the testimony defendant interposed a demurrer to the evidence, which the court overruled. We merely state this so as to throw light on the attitude of plaintiff as regards the allegations of his petition and not as intimating that such demurrer should have been sustained for lack of offering this contract on plaintiff's side of the case; for since it was offered by defendant, who did not stand upon its demurrer, it is in the case for all purposes, anyhow.

This contract provides as to the places from which earth for the making of the embankments for the settling basin shall be obtained, thus: "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." (Italics ours.)

At the time of entering into this contract by the parties herein, defendant city owned a parcel of land which adjoined the old settling basin and was near the proposed new one, which was to be constructed by plaintiff and which new one adjoined the old basin. After some 20,000 cubic yards of embankment had been built from earth obtained from the land of the defendant above mentioned, it was discovered by the engineers of the city (who under the contract had the ultimate right of decision as to the quality of materials), that the earth in this land, which consisted of a hill, was not of the proper quality out of which to construct the embankment. It was found that it consisted not of clay, which was re

Mullins v. Kansas City.

quired, but of gravel and sand, mixed with boulders, so that it became necessary to acquire another place from which to obtain the necessary earth. The defendant thereupon purchased 80 acres of land adjoining the original hill which it owned and notified plaintiff to obtain the remaining necessary earth for the construction of the embankments from the latter place. Some ninety-seven thousand cubic yards of earth were required for the embankments. Plaintiff obtained about twenty thousand cubic yards of this from the old pit, and took the remainder, some seventy-seven thousand cubic yards in all, from the new pit on the land last purchased. Before doing this, however, plaintiff went before the Board of Fire and Water Commissioners (hereinafter for brevity and convenience called simply Fire and Water Board) and complained that the obtaining of earth from the new pit, which was 447 feet from the old pit, or which necessitated an increased average haul of that distance, I was not within his original contract. The Fire and Water Board contended that it was. Plaintiff seems to have insisted that he should have a written order from said board to go on with this work. The Fire and Water Board made no entry anywhere, or in anywise upon their records, touching the matter of socalled extra haul, nor of plaintiff's appearance and contentions; so proof of the matter rests wholly in parol assertion and in parol denial. Relating what transpired before this board plaintiff, testifying for himself, says: "I went down to them and wanted a written order to go on with this work and I wanted to know how much they were going to pay me for the extra work. At the time Mr. Brent, Mr. Groves and Mr. Meyers were the members of the Fire and Water Board. They wouldn't enter into any written agreement that evening, but Mr. Groves and Mr. Brent told me I would be paid. They said to go ahead and do the work and it would be settled for

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