7. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. The exclusion of such evidence was harm less error, in the absence of any showing that the remainder of the trench was of the same formation, where the proportion of such openings to the length of the entire excavation was exceedingly small. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*] COX, J. Action by certain property owners to cancel special tax bills issued to defendant Plummer as contractor in payment for the construction of a district sewer in the city of Springfield. The defendants in their answer alleged compliance with the law and ordinances of the city and asked for a foreclosure of the lien of the tax bills issued against the property of the plaintiffs. cept that he reduced the amount of each bill 10 per cent. and then ordered foreclosure for the remainder of the tax bills. Plaintiffs have appealed. 8. CUSTOMS AND USAGES (§ 15*)—Contracts The trial court found for the defendants, ex-CONSTRUCTION-PUBLIC IMPROVEMENTS. A contract for the construction of a district sewer fixed the price per lineal foot for all excavation of 6 feet and under 8 feet at 30 cents; 8 feet and under 10 feet, 25 cents; ** 16 feet and under 18 feet, 60 cents, etc.; price per lineal foot for rock trench per The questions upon which plaintiffs rely foot in depth, 25 cents; and declared that only for a reversal of the judgment are: First. such ledge rock, limestone as required blast- That the contract for putting in the sewer ing for removal should be estimated as rock excavation, and should be paid for by the lin- was let at a price in excess of the prelimieal foot, depth of earth excavation to cease nary estimate of the city engineer. Second. where rock excavation began. The evidence That material changes were made in the showed that in the doing of the work rock construction of the sewer after the contract was found at the bottom of the ditch, but at what section or how deep the excavations were was let, by the addition of laterals not callat places where rock was found was not shown. ed for in the contract and by omitting other Held, that parol evidence of the practice in the parts that were called for in the contract. city to allow the 25 cents per lineal foot for Third. That there was a change of grade rock excavation in addition to the amount charged had earth extended to the bottom was after the contract was made. Fourth. That admissible to show that the contractor was there was a double charge for excavating entitled to charge for excavation in accordance by charging for both dirt and rock in the with such practice. Fifth. That the same part of the ditch. court erred in excluding certain testimony offered by the plaintiffs. [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. §§ 30-33; Dec. Dig. 8 15.*] 9. EVIDENCE (§ 448*)-PAROL EVIDENCE-INTENTION OF PARTIES. A contract must be construed as a whole, and, where its terms are clear when so construed, the court must declare as a matter of law the meaning of the contract, but, where it is not clear, parol testimony may be resorted to to show the condition of the matter about which the contract was made. [1] As to the first point, we do not think The estimate of the engineer itemized the the contention is sustained by the testimony. work and the cost. He estimated that it would require 1,705 lineal feet of 8-inch pipe including Y's, branches and joints, two lamp holes, two flush tanks, four manholes, etc. [Ed. Note. For other cases, see Evidence, The excavation was classified and a separCent. Dig. § 2066-2082, 2084; Dec. Dig. 8 ate estimate put upon all excavations in448.*] 10. CONTRACTS (§ 170*) — CONSTRUCTION [Ed. Note. For other cases, see Contracts, cluding back filling, 6 feet and under 8 feet being in one class; 8 feet and under 10 feet in another; 10 feet and under 12 feet in another; 12 feet and under 14 feet in another; 14 feet and under 16 feet in another; 16 feet and under 18 feet in another; and on each of these a separate estimate was made. There was an estimate of 2,800 lineal feet for a rock trench and 3,400 lineal feet of flint excavation. These with some other The court, foreclosing special tax bills not items, all of which were specified, made a paid within six months as provided by law, properly computes interest at 15 per cent. to total of $3,189.15. The contract also specithe date of judgment; but the judgment will fied same items and was at a less price bear but 6 per cent. interest from its rendition. for each item than the estimate of the en[Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 1218, 1219; Dec. Dig. 518.*] Nixon, P. J., dissenting. Appeal from Circuit Court, Greene County; James T. Neville, Judge. Action by J. P. Stover and others against the City of Springfield and another. From a judgment for defendants, plaintiffs appeal. Affirmed. Henry C. Young, of Springfield, for appellants. Barbour & McDavid, of Springfield, for respondents. gineer. There was also a provision in the contract that extra work should be done according to the engineer's estimate, and, if this made an increase in the amount of work, it should be paid for according to the quantity actually done and at the price stipulated in the contract. The basis for the contention that the contract price exceeded the estimate of the engineer is not based upon the fact that the contract was let at a higher price on any item of the contract, but is based upon the fact that, after the work was completed and •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the work actually done was computed, by by the engineer. The addition of the latthe addition of laterals, the length of the erals was necessary in order to furnish propditch was increased, and also that the er drainage for the entire district, and one amount of flint excavation was increased ditch was shortened because it was found over the estimate, and, that being true, the total cost, instead of being as estimated, $3,189.15, amounted to $4,247.35. to be unnecessary to dig it as long as estimated, and, since the basis of this contract was the items of work, we think it was entirely right and proper for these changes to have been made and was in fact the duty of the city to make them so that the district could be properly accommodated and without unnecessary cost. In the very nature of things it was impossible for the engineer to ascertain before the ditch was actually dug how much flint and how much rock would be encountered in excavating the ditch, and for that reason the parties could not understand that his [3] It also appears that there were some estimate as to the total cost should control changes in the grade of the main pipe, and over the estimate as per the items making it is now contended that this vitiated the up the total expenditure, and, as the con- contract and tax bills. The evidence shows tract was let at a price below the estimate that this change lessened the cost without on each item, and all the items going to in any way impairing the service to be renmake up the total having been specified, it dered the residents. These property ownwould certainly be unreasonable to hold that, ers therefore were benefited by the change because the engineer underestimated the rather than injured, and, since it did not amount of rock and flint to be found under increase but lessened the amount of the the ground, the contractor could not recov- contract, it was not fatal, and they cannot er for the work actually done. We are cit-complain. ed by appellants' counsel to the case of Gratz v. City of Kirkwood, 165 Mo. App. 196, 145 S. W. 874, decided by the St. Louis Court of Appeals, as authority for the position that the contract or the total amount of the tax bills could not exceed the estimate of the engineer as to the total cost of the construction of the sewer; but a careful examination of that case will show that, instead of being an authority for that position, it is authority for the position that the estimate of the total cost does not control over the items when the items are specified, and our holding in this case that the evidence does not show the contract to be in excess of the estimate is in harmony with the Gratz Case. [2] The second contention is that material [4, 5] It is next contended that plaintiffs offered to show that one lot about 50 by 100 feet lying within the district had been omitted in computing the area of the district, and that by reason thereof the cost to these plaintiffs had been increased to that extent. When this offer was made the court excluded it upon objection of defendant. Afterward, however, the same testimony was admitted without objection, and it was further shown that certain other territory not lying in the district was included in computing not less than the actual area, and the charge the area, so that the area as computed was against the plaintiffs' property was not thereby increased. The testimony was competent and should have been admitted; but, since it is shown that the area of the district as computed by the engineer was not less than the actual area, plaintiffs were not injured by this omission and cannot now complain. changes were made after the contract was let, by shortening one of the ditches called for in the contract and by adding laterals at other places not called for in the contract. The evidence shows that this was done, and that by doing so the total length of the ditches dug and pipes laid was great[6, 7] Plaintiffs also offered to prove that, er than that stated in the engineer's pre- since the trial had begun, parties had made liminary estimate. But we do not think un-excavations of the ditch at certain points, Ider the evidence in this case that these and that at the points at which these exchanges were fatal to the validity of the tax bills. It is the duty of the city in constructing any district sewer to place it in such a way that it will accommodate the property owners of the district. In this case, an abstract of title was procured for the purpose of determining who the owners were and size of the lots and their location in order that the sewer might be so placed as to meet the demand for service from all the lots. It developed that some mistakes had been made in the abstracts, and that when they went to do the work it became necessary to add some laterals in order to reach some parts of the district, and it also was found unnecessary to dig one of the ditches the full length estimated It cavations were made the side walls of the ditch showed that there was at these points but a small proportion of flint excavation. This testimony was excluded. We think the exclusion of this testimony was error. ought to have been admitted and have gone to the jury or the court sitting as a jury for what it was worth. But if this testimony had been admitted, the trior of the facts might still have found that there was no mistake in the totals returned as flint excavation, for there was no offer to show that the same formation was present in other parts of the ditch and the amount of the ditch reopened was so small as compared with the entire ditch that to reverse this judgment on account of this error would not be justified because the change that ing for removal shall be estimated as rock would have been made by this testimony had it been admitted would have been so small as to have been unworthy the serious consideration of this court. [8] As to the contention that there was a double charge for both dirt and rock on that portion of the ditch in which rock was found, a very close question is presented which rests largely upon a construction of the contract itself. The items for excavating, as stated in the contract, run in the following form: "The price per lineal foot for all excavation and back filling: Six feet or over and under 8 feet, $.30; 8 feet or 10 over and under 10 feet, $.25; feet or over and under 12 feet, $.40; 12 feet or over and under 14 feet, $.45; 16 feet or over and under 18 feet, $.60; price per lineal foot for rock trench per foot in depth, $.25." The testimony showed that in sewer contracts similar to this it had been the uniform practice for years, in counting the cost of excavation, to count it at the price mentioned the entire depth of the ditch, and then, if there was rock in the ditch, to add that to it, and that was done in this case and one of the items making up the total charges in this case is 1,000 lineal feet of rock trench at $.25 per lineal foot, $250. The evidence also showed that rock was found at the bottom of the ditch, but at what sections or how deep the excavations were at places where the rock was found does not appear; but, in any event, the most shallow excavation any where was in the class of 6 feet or over and under 8 feet, and for that class $.30 per lineal foot was charged, so that if in that section the dirt was 5 feet thick and then 1 foot of rock was to be excavated below the dirt, and we should compute the 5 feet of dirt at the dirt price, we would find that the contractor was excavating dirt 5 feet deep at $.30 per lineal foot and then taking out rock below this dirt at $.25 a lineal foot. If the rock were found in the bottom of the ditch that was 16 feet deep, we would find the contractor getting $.60 a lineal foot for excavating dirt to the depth of 15 feet and then only $.25 a foot for excavating rock below that depth. So it is easy to see from a consideration of these items that it was not the intention of the parties to charge less for excavating rock at the bottom of the ditch than for excavating dirt near the top of the ditch. If this were all there were in the contract on this question, it would seem clear that the parties intended that the general excavation, which varied in parts according to the depth of the ditch, should extend to the bottom of the ditch, and, if rock was encountered, the price per lineal foot for rock of $.25 should be added to the general price for excavating. There is, however, the following provision in the contract: "Only such ledge rock, limestone as requires blast excavation and will be paid for by the lineal foot, depth of earth excavation to cease where rock excavation begins. Well-defined ledges of flint will be paid for at one-half the price of rock excavation." (The italics are ours.) The words "depth of earth excavation to cease where rock excavation begins" are held by appellants to preclude any construction of the contract which would allow the extra price for rock of $.25 to be added to the general price which is gauged according to the depth of the ditch. [9, 10] It is a well-settled rule of construction of contracts that the entire contract, including all its provisions, must be construed together, and when this is done, if its terms are clear and unequivocal, then it is the duty of the court to declare as a matter of law what the contract means and give it its proper construction; but, if it is not clear, then oral testimony may be resorted to, to show the condition of the matter about which the contract is made, and, if there has been a construction placed upon it by the parties themselves, that may be used to aid in determining what the parties really meant by the language used in the contract to be construed. In this case, it is shown that the rock was at the bottom of the ditch as it would be supposed to be in all ditches, and it is apparent that neither the city nor and excavate rock at the bottom of the ditch the contractor expected that he would blast for a less price than he would throw out dirt near the top of the ditch which could be handled with a pick and shovel and could be excavated faster and cheaper than the rock at the bottom of the ditch could be ex cavated. In view of this situation, we are of the opinion that it was competent to show by oral testimony the practice in vogue in the city of Springfield to allow the $.25 per lineal foot for rock excavation in addition to the amount which would have been charged had the dirt extended to the bottom, and as the evidence clearly shows that to have been the practice for years prior to the execution of this contract, and the city engineer having recognized it and reported it in that way in his computation of the cost of the sewer, the trial court was entirely right in making the computation upon that basis. In making a contract of this character, both the city and the contractor ought to be careful to see that the contract should express in language too clear to be misunderstood exactly what the parties intend; but, after the contract has been executed, the work honestly performed, and the question arises in the court as to what compensation the contractor may recover, we must apply a reasonable and common sense rule to the construction of the contract with the end in view of trying to ascertain in a fair and just manner what the parties really meant when the contract was executed. [11] Some contention is made here also that, even if the tax bills are held to be valid, the amount of recovery should be materially reduced for the reason that 15 per cent. was allowed upon the face of the tax bills because the bills had not been paid within six months as provided by the statute. The judgment in this case does not provide the rate of interest which the judgment shall bear; hence the judgment will bear but 6 per cent. from the date of its rendition and can only bear interest at that rate. Boonville ex rel. v. Stephens, 238 Mo. 339, 141 S. W. 1111. We think the trial court was right in computing interest at 15 per cent. to the date of the judgment, and, as the judgment itself will bear but 6 per cent. from date of its rendition, no error was committed in that particular. Judgment affirmed. the court has no jurisdiction of the defendant's person should also contain a statement of whatever defense there is on the merits. [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. 88 156, 508-510; Dec. Dig. § 85.*] 5. PROCESS (§ 155*) OBJECTIONS TO SUMMONS-MOTION TO QUASH. An objection to the insufficiency of the summons or of its service should be taken by motion. [Ed. Note. For other cases, see Process, Cent. Dig. § 210; Dec. Dig. § 155.*] 6. PLEADING (§ 106*)-PLEA IN ABATEMENTVENUE. An objection that a court has no jurisdiction of the person of the defendant sued in N. county, jointly with other defendants who were not residents of such county, is matter to be pleaded in abatement. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 219-227; Dec. Dig. § 106.*] 7. JUDGMENT (§ 381*)-SUSPENSION-MOTION TO SET ASIDE. While a motion to set aside a judgment, though after the four days for motions for new trial have expired, if it goes over to the next term, suspends the judgment and may be GRAY, J., concurs. NIXON, P. J., dis- sustained at the succeeding term, a suggestion sents. that the court of its own motion set aside a judgment for want of jurisdiction, filed without notice or leave and without calling the attention of the court thereto, does not affect the cause. [Ed. Note.-For other cases, see Judgment, CURFMAN v. FIDELITY & DEPOSIT CO. Cent. Dig. § 725; Dec. Dig. § 381.*] OF MARYLAND. (Kansas City Court of Appeals. Missouri. Nov. 25, 1912. Rehearing Denied 1. INSURANCE (§ 26*)-ACTIONS AGAINST FOR- Under R. S. 1909, § 7042, which provides that service against a foreign corporation authorized by the Insurance Superintendent to do business in the state may be had on the superintendent in an action begun in any county in the state, and that such service shall be binding and deemed personal, such corporation, for the purposes of venue in civil actions, was a resident of each county of the state, and the circumstance that the summons was issued to and was served in the county of the official residence of the superintendent is immaterial. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 33; Dec. Dig. § 26.*] 2. DISMISSAL AND NONSUIT (§ 39*)-VOLUNTARY DISMISSAL ENTRY OF ORDER. Where plaintiff in an action against a surety company and its principals voluntarily dismissed as to the principals, the clerk's entry of the dismissal without formal judgment that the principals "go hence without day" was sufficient evidence of dismissal and not objectionable on the ground that it did not dispose of all the parties to the action. [Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. § 66; Dec. Dig. § 39.*] 3. TRIAL (§_9*)-DUTY TO TAKE NOTICE OF Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge. Action by Edwin C. Curfman against the Fidelity & Deposit Company of Maryland and others, dismissed as to the other defendants. Judgment for plaintiff, and defendant appeals from an order of the court refusing to set aside the judgment or to quash the execution. Affirmed. R. L. McDougal, of Maryville, Arthur Miller and New & Krauthoff, all of Kansas City, and Washington Bowie, Jr., of Baltimore, Md., for appellant. A. F. Harvey, of Maryville, for respondent.. ELLISON, J. The board of regents of the Fifth district normal school at Maryville, Mo., were constructing a school building at or near that city in October, 1909, and let a contract to D. E. Marshall & Co., a partnership composed of D. E. Marshall and O. M. Evans, for part construction thereof. The board required these contractors to execute a bond with surety that they would comply with their contract and pay for all labor and material going into the building. compliance with this requirement, they executed a bond with the Fidelity & Deposit Company of Maryland as surety. This corporation of the state of Maryland was authorized to execute such bonds by the insurance laws of this state; and in compliance with those laws it authorized the State Insurance Superintendent of Missouri, locat4. ABATEMENT AND REVIVAL (§ 3*)-PLEAD-ed at the State Capital in Cole county, as ING IN ABATEMENT MATTER IN BAR. STEPS IN JUDICIAL PROCEEDING. Where defendant has been regularly summoned to answer plaintiff's complaint, he is not entitled, in the absence of a rule of court, to any further notice, but it is his duty to look after the case and attend court upon the day it is docketed for trial. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 21-26; Dec. Dig. § 9.*] In There being but one answer known to the its agent to receive or accept service in all law, a plea in abatement on the ground that actions arising in the courts in any county *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes in this state. Section 7042, R. S. 1909. In the course of construction of the school, Marshall & Co. failed to pay plaintiff for certain material bought of him for the building, and in consequence of such failure plaintiff instituted this action in the Nodaway county circuit court. Both Marshall and Evans resided in Jackson county, Mo., and summons was issued and served upon them in that county. A summons was also issued against the Fidelity & Deposit Company of Maryland director to the sheriff of Cole county for service upon the State Insurance Superintendent and service was had. Pleas in abatement were filed at the November term of court jointly by Marshall and Evans and separately by the surety company; the appearance of the parties being limited to that purpose. The ground alleged for abatement was that the defendant surety company was a nonresident of the state, and that the other defendants were nonresidents of Nodaway county, and that neither of them was found in such coun ty. During the November term, on the 24th of that month, the case was called, when plaintiff dismissed as to Marshall and Evans. The surety company made default, whereupon, a jury being waived by plaintiff, evidence was heard on plaintiff's claim and judgment rendered for the penalty of the bond and the damages assessed to plaintiff at $935. In the following month (December 18th) the surety company, "appearing for that purpose only, suggests to the court that of its own motion it set aside the judgment in the cause," and for reasons therefor stat ed that the action was not properly brought in Nodaway county, since Marshall and Evans were not residents of that county and the surety company was a nonresident, and none of them were found in that county, "and that neither of said defendants were minous, but the questions decisive of the appeal clearly ought to be answered in favor of plaintiff. The position taken by defendants at the start and insisted upon on all occasions afterwards, and upon which is really built all complaint, seems plainly erroneous; that is, that the trial court did not have jurisdiction of the defendants so as to render a valid judgment in the cause. This idea is based altogether upon the assumption that the action could not be brought in Nodaway county unless all of the defendants were nonresidents as provided by the fourth clause of section 1751, R. S. 1909. And the further assumption that the surety company was a nonresident and that therefore, since Marshall and Evans were residents of Jackson county, the suit should have been brought in the latter county as provided by the third clause of that section. [1] This position of defendants leaves out of view the provisions of section 7042, which direct that service may be had on the Insurance Superintendent in an action begun in any county in the state, and that such service shall be binding and deemed personal. For the purposes of venue in civil actions against the defendant surety company, it circumstance that the writ of summons was was a resident of Nodaway county, and the issued to and served in Cole county, the official residence of the Superintendent of Insurance, can make no difference under the State ex rel. v. Grimm, 239 Mo. 135, 166, provisions of the statute above mentioned. 143 S. W. 483; Meyer v. Insurance Co., 184 Mo. 481, 83 S. W. 479. The action being properly brought against the surety company, as though such company was a resident of Nodaway county, seemed to justify the and Evans as codefendants under the second plaintiff in joining the defendants Marshall clause of section 1751. But such joinder is of no consequence here, since the action was dismissed as to Marshall and Evans, leaving the action properly brought against the remaining defendant. served in this county as required by the first clause of section 1751, R. S. 1909." The clerk of the court indorsed a filing on this suggestion as thus written by the surety company, but no notice was given of its filing, and the court's attention was not called [2] The action being properly brought and to it. Afterwards, on the 26th of January, the court having complete jurisdiction and 1912, execution was issued on the judgment. judgment being rendered, it leaves defendant At the February, 1912, term, being the without any cause of complaint unless it be next term after the judgment was rendered, on the following grounds: It appears that, defendant surety company called up its sug- in entering the dismissal of the cause, the gestions filed at the last term, as above menclerk did not enter a formal judgment of tioned, and they were overruled by the discharge that they "go hence without day," court. On the 1st of March, 1912, during and upon this the surety company has raised the February term, defendant surety com- a question as to the validity of the judgment pany filed an amended or supplementary subsequently rendered against it, claiming motion to set aside the judgment rendered that a judgment should dispose of all the against it at the former term as above stated, parties to the action. We do not see how and afterwards, on the 9th of March, filed such omission can affect the surety comits motion to quash the execution issued as pany. The dismissal was not caused by a stated. Both these motions were overruled, hearing, nor by any adverse ruling of the and this appeal was taken from the order of court. It was a voluntary dismissal by the court refusing to set aside the judgment plaintiff before trial, and the entry of the and refusing to quash the execution. clerk was sufficient evidence of that fact. The record in the case is somewhat volu- Davis v. Hall, 90 Mo. 659, 665, 3 S. W. 382. |