
    GEEEN CLAY, Appellant, v. CITY OF MEXICO, Respondent.
    St. Louis Court of Appeals,
    February 25, 1902.
    1. Accord and Satisfaction: RELEASE: ACCORD WITHOUT SATISFACTION DOES NOT OPERATE AS A RELEASE: CITIES OE THE THIRD CLASS: ORDINANCE EOR BRINGING STREET TO PROPER GRADE: COSTS. A city of the third class may provide for bringing a street to an established grade at the expense of either the city or of the abutting property-owners, but an ordinance providing for the particular work is necessary to charge either with the cost of the work.
    2. -: - — : RATIFICATION OE WORK DONE WITHOUT AUTHORITY OE ORDINANCE. And if such work is done without an ordinance providing for it, the city can not be bound by a ratification of the work after it has been done by an action of the city council.
    3. -: -. And in the ease at bar, if the purpose of the improvement was to bring the street to the established grade, the street committee was, in the absence of any ordinance providing for the work, without authority to bind the city, and it was not within the power of the city to ratify the unauthorized act of the street committee and street commissioner so as to make the city responsible for damages alleged in plaintiff’s petition.
    Appeal from Audrain Circuit Court. — Hon. Elliott M. :Hughes, Judge.
    AFFIRMED.
    STATEMENT OF THE CASE.
    Plaintiff is a resident of tbe city of Mexico, Audrain ■county, Missouri. The premises he owns and npon which he resides, fronts seven hundred feet on Clark avenne in said eitv. Plaintiff bas three driveways on his premises with approaches from the avenue into his property, and a tile drainage from his residence to the street from thence under a culvert across the street. In June, 1897, under the direction of the street and alley committee of the city, the city street commissioner entered upon the street in front of plaintiff’s premises with laborers and cut down the street and destroyed the driveways leading into the street, moved the culvert across the street and stopped the flow of water from plaintiff’s drainage pipes and turned the water from the street on to plaintiff’s property; to plaintiff’s damage, as the evidence tends to prove, from fifteen hundred to two thousand dollars.
    The defendant is a city of the third class and as such has power to improve streets, establish grades and bring streets to grade. Sections 5858, 5859, and 5861, R. S. 1899.
    On July 19, 1894, the city by ordinance established the grade of Clark avenue. The ordinance of the city, read in evidence, provides that all labor necessary to bring to grade the streets and alleys within the city and to keep the same in good repair and condition, unless otherwise specially provided by ordinance, shall be done at the expense of the general revenue fund of the city.
    It is also provided that, “At the first regular meeting of the council, held after the annual city election in each year, or as soon thereafter- as possible, it shall be the duty of the mayor, by and with concurrence of the council, to appoint from its numbers, committees of the council as follows, three each: on claims; on streets, alleys and sewers; on cemetery, parks and public buildings.”
    The duties of the street committee are defined, among other things, “To see -that the ordinances in relation to the construction, improvement and repair of streets, alleys, sidewalks and sewers are strictly enforced, and report all violations of the same to the council. To exercise a general supervision over the streets, alleys, sidewalks and sewers of the city, make ex-. animations of the same from tibie to time, report to the mayor and council their actual condition, and submit such recommendations or suggestions respecting their improvement or repair as in their judgment may be necessary. To examine and audit all accounts for work done or material purchased and used in the construction, improvement or repair of streets,” etc.
    By section 5765, Revised Statutes 1899, the mayor, with the consent and approval of the majority of the city council, is given power to appoint a street commissioner. The ordinance provides that the street commissioner shall personally superintend or direct all the labor required to be done in the opening, widening, grading, etc., of any street, alley, etc.
    The evidence is that the topography of Clark avenue, where it passes along and in front of plaintiffs premises, was uneven; that it had not been graded; that in June, 1897, under the direction of the street and alley committee, the street commissioner entered upon that part of Clark avenue fronting plaintiff’s property and over plaintiff’s protest cut down the street in some places and filled it at others. That the cuts were made at points where plaintiff’s driveways connected with the street and that the cuts at these points were from four to five feet deep and that plaintiff’s access to the street from his driveways was destroyed; that the culvert through which plaintiff’s drainage passed off was filled up and the surface water in that locality was by the fill so forced into the ditch on the side of the street next to plaintiff’s premises as to wash away the embankment left as a foundation for a sidewalk, and in places caused the water to back up and overflow plaintiff’s property.
    W. B. Mclntire, a witness for the plaintiff, testified that he was city engineer of the defendant; that he had in his possession as such the grades fixed by ordinance for Clark avenue; that when the work was done on the street the parties doing the work did not call for the grade and that he did not give them the grade and they could not have had the grade from anyone else; that the work wras not done according to the grade as established; that the grade in front of plaintiff’s premises is cut a foot below wbat the grade calls for and that in other places the grade is not as deep as the established grade. That in front of the premises the grade is about right to take a foot of macadam to bring it up to the proper grade.
    The plaintiff offered to prove that the street commissioner’s report of the work and expense of the same was made to the city council and by it approved and the cost of the work ordered paid. On the objection of the defendant this evidence was excluded.
    At the close of plaintiff’s evidence the court sustained a demurrer to the evidence. In due time plaintiff filed his motion for a new trial, which was by the court overruled and he appealed. The appeal was to the Supreme Court. It has . been transferred to this court. Pending the appeal in the Supreme Court, defendant filed its motion to dismiss the appeal on the ground that plaintiff had settled his damages with Thomas Board and D. C. Owen, who were defendants in a suit then pending for the recovery of the damages sought to be recovered in this action, and defendant now presses this motion to dismiss in this court.
    The case of Green Clay against Thomas Board and D. C. Owen was in this court by appeal at the October term, 1900, when it was reversed and remanded for misdirection of the jury. It appears from the certified copy of a paper filed in the . Audrain Circuit Court on the first day of Eebruary, 1901, that the parties to that suit entered into the following agreement:
    
      “Stipulation. — It is hereby agreed and stipulated that the case of Green Clay, plaintiff, against Thomas Board and D. C. Owen, defendants, now pending in the circuit court of Audrain county, Missouri, shall be continued until the June term of said court for 1901, and the motion for the change of venue in said cause shall be continued with said case by consent of parties. That the case has been settled by the parties thereto on the following terms: Defendants agree to pay off all of tbe costs made in said case in tbe said circuit court that now remain unpaid, save and except tbe cost due plaintiff’s witnesses and plaintiff shall pay bis own witness fees. And plaintiff agrees to pay all costs created and made in said cause in tbe St. Louis Court of Appeals including tbe cost of printing tbe abstract of record, etc. Defendants have also this day paid to plaintiff cash in tbe sum of $100, tbe receipt of wbicb is hereby acknowledged in full settlement of all claims said plaintiff has against said defendants or either of them. Tbe entry of record dismissing said cause according to this stipulation shall be entered and made at tbe June term of said Audrain Circuit Court for 1901. Signed in duplicate at Mexico, Missouri, this February 1st, 1901. Green Clay, per Ery & Clay, per "W. W. Ery; D. 0. Owen; Tbos. Board.”
    
      Jno. T. Baker and Fry & Clay for appellant.
    (1) Defendant, a city of tbe third class, by its charter, has power to improve streets, establish grades and bring streets to grade. R. S. 1899, secs. 5858, 5859 and 5861. (2) Defendant by ordinance provided for tbe appointment of a street and alley committee. Defendant by ordinance defined tbe duties of said committee, among wbicb it was to exercise a general supervision over tbe streets and alleys, employ workmen, teams, material, etc., work, repair and improve streets and carry into effect “all ordinances respecting tbe streets and alleys of tbe city.” (3) By charter the office of street commissioner was created. R. S. 1899, sec. 5765. By ordinance tbe duties of the street commissioner are defined, among wbicb are that be “shall personally superintend and direct all improvements,” etc., “upon tbe streets,” etc. (4) There is no question but what tbe work was done by tbe street commissioner at tbe direction and under tbe supervision of tbe street and alley committee, duly appointed by tbe council; that a written report by tbe street commissioner of tbe work and expenses were made to and approved by the council. (5) There being no attempt to “change the grade” (as established), no ordinance was therefore necessary to hold the city liable for the work done, unless an attempt was made to bring the street to the grade (as established). Now, therefore, the officers either attempted to bring to grade (as established) this street, or they merely attempted to repair and improve the same without bringing it to grade. This proposition is beyond controversy. We contend and insist that it is immaterial which they attempted to do, for in either event the city is liable. Davis v. Railroad, 119 Mo. 180; Hickman v. City of Kansas, 120 Mo. 110.
    
      Robertson & Barnes for respondent.
    (1) The sole authority for changing the grade of a street is fixed by the charter of cities of the third class, in the city council, and must be exercised by ordinances duly enacted. (2) In the absence of an ordinance changing the grade of a street the officers or persons engaged in the work might be liable (Olay v. Board & Owen, decided by this court, March term, 1900), but not the defendant. Thompson v. Oity of Boonville, 61 Mo. 282; Rowland v. Oity of Gallatin, 15 Mo. 134; Stewart v. Oity of Glint on, 19 Mo. 603; Werth v. Oity of Springfield, IS Mo. 107; Werth v. Oity of Springfield, 22 Mo. App. 12. (3) The reasons for the rule for the non-liability of the city in the absence of an ordinance are: Eirst, that private property can not be taken or damaged for public use without just compensation; second, that the city can not act except under an ordinance duly enacted.
   BLAND, P. J.

I. In the Board & Owen case there were two counts to the petition. One in trespass, the other for damages for the negligent cutting down of the street. The petition in the present case alleges in substance that the city of Mexico wrongfully and negligently cut down the street to-plaintiff’s damage. No trespass is alleged. Tbe injury alleged in botb causes is tbe same but in neither case is it alleged that Board and Owen and tbe city of Mexico were joint tort-feasors, nor is tbe city charged at all with tbe commission of a tort, nor is it alleged in tbe petition in either case that Board and Owen and tbe city in conjunction cut down tbe street. On tbe contrary in the one case tbe negligent acts are charged to tbe sole account of Board and Owen and in tbe other to tbe sole account of tbe city of Mexico, acting through Board and Owen, and its street commissioner, as its agents and officers. Tbe release of Board and Owen was not a release of them as joint tortfeasors with tbe city, and does not therefore inure to tbe benefit of tbe city. If tbe stipulation is susceptible of a construction that w'ill give to it tbe force and effect of an accord it shows oil its face that Board and Owen agreed to pay certain costs. Until tbe agreement is fully complied with there can be no satisfaction and there is no evidence that Board and Owen have paid these costs. Accord without satisfaction does not operate as a release. Our conclusion is that tbe motion to dismiss tbe appeal is without merit and is denied.

EE. There was* no specific ordinance authorizing tbe improvement of Clark avenue. Its grade had been established by a city ordinance, but no ordinance or resolution of tbe city council bad been passed directing that tbe street be brought to tbe established grade. Tbe street and alley committee of tbe city council ordered tbe work to be done and it was done under tbe supervision of tbe street commissioner. It seems from the evidence that it was not tbe purpose of tbe street committee to bring tbe street to exact grade, as tbe city engineer was not consulted about tbe work, nor did the street committee or superintendent seek to ascertain what tbe grade was. But tbe performance of tbe work on tbe street did bring it, approximately, to tbe established grade.

Plaintiff offered to prove that a report of tbe work and -of its cost was made by tbe superintendent of streets to the city council and that tbis report was by tbe council approved and tbe cost of tbe work ordered paid. Tbis evidence was excluded by tbe court.

Eor tbe purpose of discussing tbe question whether or not plaintiff made out a prima facie case, we will consider tbe rejected evidence as a part of tbe plaintiff’s case and as tending to prove a ratification by tbe city of tbe work. "We will then have two questions presented for solution: First, whether or not tbe street committee bad tbe authority under tbe charter and ordinances of tbe city to order tbe street commissioner to do tbe work; second, if tbe street committee was without authority to order tbe work done, is the city liable on account of tbe ratification by tbe council of tbe unauthorized acts of tbe street committee and the street superintendent?

Tbe city of Mexico, being a city of tbe third class, may pay for tbe grading of streets out of tbe general revenue fund. Third subdivision, sec. 5858, R. S. 1899. The general ordinance of tbe city provided that tbe expense of grading streets shall be paid out of the general revenue fund. Tbe eighth subdivision of section 5858, supra, provides that, “Before tbe city council shall make any contract for.... grading any street.... an estimate of tbe cost thereof shall be made to the city engineer or other proper officer and submitted to tbe council, and no contract shall be entered into for any such work or improvement for a price exceeding such estimate: Provided, that no such estimate shall be required for tbe making of any local or special repairs.”

A city of tbe third class may provide for bringing a street to an established grade at tbe expense of either tbe city or of tbe abutting property-owners, but an ordinance providing for tbe particular work is necessary to charge either with tbe cost of tbe work. City v. Eddy, 123 Mo. 546; Wheeler v. City of Poplar Bluff, 149 Mo. 36; Kolkmeyer & Co. v. City of Jefferson, 15 Mo. App. 618; Koeppen v. City of Sedalia, 89 Mo. App. 648; Reed v. Peck et al., 163 Mo. 333. If such work is done without an ordinance providing for it, the city can not be bound by a ratification of tbe work after it has been done by any action of the city council. Kolkmeyer & Co. v. City of Jefferson, supra; Savage v. Springfield, 83 Mo. App. 323.

"We conclude that if the purpose of the improvement was to bring the street to the established grade, the street committee was, in the absence of any ordinance providing for the work, without authority to bind the city and that it was not within the power of the city to ratify the unauthorized act of the street committee and street commissioner so as to make the city responsible for the damage alleged in plaintiff’s petition.

HI. It is contended by the plaintiff that the improvement of the street was not done for the purpose of bringing it to the established grade but was ordinary repair work. The fifth subdivision of section 5858, supra, provides that, “Ordinary repairs of streets may be made in the same manner prescribed in this Subdivision of this section, but repairs on unimproved streets shall not exceed fifty dollars per year for each city block.” The other improvements referred to are such as may be paid out of the general revenue fund of the city or by assessments against the abutting property-owners.

The duties imposed by the ordinance on the street committee nowhere authorize it to order repairs of streets. The duty of seeing that the streets are kept clean and to remove obstructions, etc., is by ordinance delegated to the street commissioner, and it may be conceded that.the street committee may order, or that the street commissioner may without orders, in cases of emergency, make such repairs as are necessary to restore a street that has been suddenly damaged to a passable condition. But beyond this and the making of such trifling repairs as nailing down a few boards on a sidewalk or making some slight repairs' to a street, the work for improving or repairing streets, alleys or sidewalks must, to bind the city, be provided for by an ordinance. The work alleged to have been done, if not to bring tbe street to grade, was to improve tbe street and was of sncb a character and extent as could not lawfully be doné in tbe absence of an ordinance or a resolution of tbe city council directing its performance. We so beld in tbe case of Olay against Board and Owen and adhere to that ruling.

Tbe judgment is affirmed.

Barclay and Goode, JJ., con■cur.  