(dissenting.) — The plaintiff in this suit seeks to recover of the defendants the amount of six special tax bills, issued to it by the city engineer of the City of Kansas, against the property of the defendants for their portion of their costs of grading May street in said city, from Sixth to Ninth streets, under a contract with said city. No question is made upon the sufficiency of the petition or the regularity of the bills upon their face. Defendants in their answer admit that plaintiff did the work, under the contract according to its terms, and that defendants were owners of real estate fronting on May street at the point where the grading was done, but claim that the contract between plaintiff and the city, under which the work was done, is void, and that the tax bills cannot therefore be collected, because the specifications upon which the contract was let to the lowest bidder, the advertisements for bids, and the contract itself contained a provision specifying that the earth and quarry rubbish taken from May street (the work there being all excavation) was to be deposited in Ninth street between Broadway and Washington streets, until that part of it was brought to grade *498and full width, and that the remainder was to be deposited in Eighth street between Broadway and Bank streets, in Bank street between Seventh and Ninth streets, and in an alley in block 2, Lucas Place. This, it was claimed, required the contractor to grade other streets at the expense of the defendants and other property-owners fronting on May street and rendered the contract and all tax bills issued under it void. Plaintiff, in its reply, claimed that such provision was incorporated in the contract in pursuance of section 30 of chapter 31, of the Revised Ordinances of the city, which authorized the city engineer, in letting contracts for grading streets, to direct where any surplus material should be deposited, and was nothing more than a permission to put the surplus material in the streets designated.
The defendants introduced in evidence the contract under which the grading was done, the material part of which is as follows: “The earth and quarry rubbish will be deposited on Ninth street from Broadway to Washington streets, until that part of Ninth street is brought to grade and full width. The remaining part will be deposited in Eighth street between Broadway and Bank streets, on Bank street between Seventh and Ninth streets, and on alley in block 2, Lucas Place addition.” The contract otherwise was in the usual form as to the character and manner of grading, price per cubic yard, etc. The testimony of defendants Holden and Cross showed that the work was done at a reasonable price and that the places where the earth was deposited were closer to the work than any other places where it could have been deposited, — Holden testifying: “I never was opposed to the grading. It was the way the grading was done — the grading of two streets at the expense of one that I objected to ; ” and Cross testifying : “ Nineteen and seven-eighths cents per cubic yard for dirt (the price specified in the contract) was a reasonable price. It was less than I could get it done for on my lot. * * * I think that there is no other gulch *499in that vicinity as near to May street as that one is (the one in Ninth street where surplus dirt was dumped) into which the dirt could have been thrown.” No evidence conflicted with this.
The plaintiff in rebuttal read in evidence section 30 of chapter 31, of the Revised Ordinances of the city, and over plaintiff’s objection, defendants were permitted to read section 31 of said chapter.
The court refused an instruction asked by plaintiff which was in the nature of a demurrer to the defendants’ evidence, and against plaintiff’s objection, at defendants’ request, gave this instruction:
“If the jury believe from the evidence that the plans and specifications for doing the work in controversy provided that the contractor must fill a certain portion of another and different street to full width and to grade, that the advertisement for bids and the bids were made in reference to such plans and specifications, and that the contract entered into between plaintiff and the city contained a provision that in doing the work in controversy the plaintiff must fill a portion of another and different street to grade and to its full width, then such contract is null and void, and you will find for the defendants.”
The verdict and judgment were for the defendants, from the latter of which plaintiff has appealed to this court.
I am by no means certain that I comprehend the theory adopted by counsel for defendants and the circuit court at the trial. It is evident that they thought something had been developed in the testimony which ought to be submitted to the jury. Yet the instruction given submitted no controverted question of fact, no question of fraud or of injury to the defendants. It, in effect, handed to the jury the specifications, the advertisement for bids and the contract under which the work was done, and said if these contain a provision that in doing the work in controversy the plaintiff must fill a portion of another and different street to grade and to its full width, then such contract is null and void, and *500you will find for defendants. There appears no ambiguity in the contract itself, and if the contentions of plaintiff that such provision was but a permission to put the surplus material in the streets designated, without additional cost or expense to defendants, and of defendants that such provision required the contractor to grade other streets at the expense of the May street property-owners, created, in the mind of the court, a latent ambiguity or uncertainty as to the true meaning of the parties, while it was proper to resort to extrinsic evidence in search of such meaning, it was undoubtedly the duty of the court to interpret the contract and to expound to the jury its meaning, instead of leaving it to them to say what the contract and its requirements really were. Miller v. Dunlap, 22 Mo. App. 97; Bishop on Cont. [En. Ed.] sec. 256; 2 Parsons on Cont. [5 Ed.] 491 et seq.; Gruin v. Railroad, 89 Mo. loc cit. 404. If the conjecture is a correct one, that the conflicting contentions of parties produced uncertainty as to the meaning of the parties, and as to the proper construction to be placed upon the contract, and the oral evidence introduced tended to sustain both contentions (which I do not admit was the case here), while a question of fact might have been properly submitted to the jury, the duty of the court nevertheless would have been to give the written contract its legal construction as affected by either side of the evidence they might decide most potent. The instruction given, in my opinion, presented to the jury a pure question of law. It makes no allusion to the oral or other record evidence introduced, and, while assuming to present the issue, if any, raised by the defendants’ answer, it virtually took the case from the jury and directed a finding for the defendants. This I think was error. Had the instruction in direct terms required a verdict for the defendants, could we sustain it ? In connection with this question, we may also consider the converse of the proposition, did the court err in refusing to give the instruction asked by plaintiff for a finding in its favor?
*501The common council of the City of Kansas have power to cause to be graded all streets, sidewalks, alleys and public highways, or parts thereof, within the city, at such time, to such extent and with such material as shall be provided by ordinance. It has not the power, however, to do such grading at the expense of property - Jiolders owning the property fronting the street graded unless a majority of the real-estate owners fronting on such street petition the common council to have such work done. Amended Charter, sec. 1, art. 8.
Under section 30, of chapter 31, of the Revised Ordinances of the city, passed in pursuance of the section of the charter above cited, the city engineer had power, in this instance, to designate where the surplus earth and quarry rubbish resulting from the work in May street should be deposited, and to provide for its disposition in his plans and specifications, if in doing so he exercised a fair and reasonable discretion and required nothing impracticable. The wisdom of these charter and ordinance provisions cannot be questioned in such a city as Kansas City, where, in its network of streets, hills are to be excavated, valleys and gulches to be filled up, when material existing in excess in one place can be conveniently taken to another where it is deficient. If the ordinance cited did not explicitly provide for such a disposition of surplus, it is by no means certain that such power would not reside in the discretion of the officers intrusted with the care and improvement of the streets. City v. Seargeant, 38 Conn. 50. At least a wrong should appear before courts are justified in declaring a contract void simply because it contains a provision for the disposition of surplus earth in some swamp or hollow in a different street close at hand. It may reasonably be assumed that in all cases where surplus earth is thus disposed of, the street receiving such surplus, as well as the property abutting it, is benefitted. Yet can it be maintained that by reason thereof all contracts must include and equally affect the property-owners fronting both streets, else the city engineer dare not dump surplus dirt into any other street in *502the city ? It could make no difference, if such was the rule of law, what the amount of surplus was on hand to be disposed of. The principle, if good in the one instance, must apply to all degrees of improvements effected in this way.
It is argued by counsel for defendants that the contract in this case provided that ‘ ‘ the earth and quarry rubbish will be deposited on Ninth street, from Broadway to Washington streets, until that part of Ninth street is brought to grade and full width.” This, it is claimed, bound the contractor to grade Ninth street at point named at the expense of property-owners on May street, where the grading was done. Little or no complaint is made about the deposits elsewhere made. Bid these words of the specifications and contract require work done, and certain improvements made upon Ninth street ? or did they simply furnish a convenient place where the contractor could dispose of surplus earth and quarry rubbish, and in so doing incidentally benefit Ninth street? We should, if possible, take a practical view of this matter, and as it is conceded that the work on May street was well done, at a fair price, and that defendants have not been injured, but have received full benefit of plaintiff’ s worlc, we should indulge all reasonable presumptions in favor of its legality. There was a reason why the city engineer should limit the deposit of earth and rubbish in Ninth street to its proper grade and width. A greater deposit than this would have created an obstruction to have been again removed. Suppose the depression in Ninth street at that point had only required a deposit of fifty cubic yards to fill it to grade, would not the same necessity ■ have required him to limit the dirt thrown there to that amount and to have found depressions elsewhere for the remainder ? The words of the specifications quoted may fairly be construed to have been a limitation upon the amount of surplus dirt to be dumped in Ninth street.' Had the surplus from May street fallen short of this limit, I apprehend that no court would have compelled *503the contractor to complete the filling of Ninth street under this contract.
It is true that Ninth street was greatly benefited by receiving the surplus from May street. Counsel for defendants at the trial below introduced in evidence section 31 of chapter 31 of the Revised Ordinances of Kansas City, which makes provision for the improvement of two streets under one contract and for a division of costs of the work between the different places and between property-owners fronting both streets. I admit that the situation of these streets with the benefits resulting to each would have presented an excellent opportunity for the making of such a contract had the property-owners on Ninth street petitioned for such improvement concurrently with the property-owners on May street. The Ninth street property-owners did not petition to have such work done. The common council, therefore, had no power to so contract the work as to apportion its cost between the property-owners on both streets.
The only defense presented by the defendants’ answer is expressed in these words: “ Had it been provided in said plans and specifications and- requirements for doing the work specified in plaintiff’s contract,.as in the case of the rock excavated, that the contractor could do as he pleased with the earth excavated, the work in controversy could have been let much cheaper.” While I hold that this allegation warranted the circuit court in overruling plaintiff’s objection to the introduction of evidence to sustain the answer, I am of the opinion that the burden rested upon defendants to prove this allegation, and, after a careful study of the record in this case, I fail to find a single item of evidence which even tended to establish it. On the contrary, as hereinbefore stated, the defendants’ own evidence showed that the work on May street was done at a reasonable price, even cheaper than could have - been done by the parties themselves. As the case stands before us, we have the defendants whose street has been improved in accordance with the expressed wish of a majority of the *504property-owners, in front feet, in compliance with the terms of the contract, at a fair price for the work done, who witnessed this outlay of labor and money on the part of the plaintiff without protest or objection, asking the court to relieve them of their obligation and thus deprive plaintiff of its expenditures and earnings, because their neighbors, without damage or expense to defendants, have received a benefit for which they cannot be compelled to pay.
Under the issue presented by this answer the true test of the validity of the contract is: Were the defendants injured or put to greater expense by reason of the stipulation in the contract ? Did the dumping of the surplus dirt in Ninth street add to the cost of grading May street ? Thus in Moore v. City, 98 N. Y. 396, in discussing this principle, the court said : “ But no harm was done to the persons assessed by taking this soil [speaking.of soil procured by the contractor outside of street in question]. The street was graded and improved and they had the full benefit of it * * * . It was much cheaper thus to take the soil than to protect the street by a retaining wall or in any other way, and thus the trespass, if one was committed, was really for the benefit of the persons assessed.”
In the case of Sheahan v. Owen, 82 Mo. 458, it is said: “The work has been done by the plaintiff. No complaint is made that it was not done according to the contract, or that plaintiff is in any manner charged with notice of alleged irregularities in the proceedings of the council or of the acts of the city officials, and while there may have been some irregularities, the ordinances were substantially complied with by the city authorities and nothing done or omitted which could possibly have affected injuriously the interests of the defendant or other property-holders, and we are not inclined to turn a plaintiff out of court who has given his time and expended his money in the improvement of their property on mere technicalities which in no manner affect the substantial rights or interests of the parties.” I find the same rule asserted in kindred cases. City v. Long, *50531 Mo. 374; Neenan v. Smith, 60 Mo. 292; Garrett v. City, 25 Mo. 505; Bissell v. Collins, 28 Mich. 277.
The counsel for the defendants, while briefing at some length a question which is not properly before us on this appeal, has failed to cite a single authority in conflict with the above-named cases. I also have been unable to find such an authority. In accordance with the views herein expressed, I hold that the circuit court erred in refusing the instruction asked by the plaintiff and in giving the instruction asked by defendants.
Believing the decision of the court rendered by my associates in conflict with the principle announced in Allen v. Rogers, 20 Mo. App. 290, rendered by the St. Louis court of appeals, and in the case of Sheehan v. Owen, 82 Mo. 458, I think the case should be certified to the supreme court. It is so ordered.