ON MOTION FOR REHEARING. The defendant contends in her motion for rehearing that we overlooked the main point in her case and disregarded the authority upon which her contention is based. In her motion for rehearing this language is used: "It was never our intention to contend that the city did not have the right to make a reasonable extension *Page 906 of time for the completion of the work, had the facts and surrounding circumstances at the time the extension was applied for, justified such action on the part of the city council. Our complaint to the action of the city representing the property owners was to its action in entering into a contract binding itself to making an extension of time under certain conditions which deprived it of its discretion, as to whether or not it would make such extension when applied for." And in her motion she says that provision in the contract ordinance of which she complains is as follows: "That in event any of the material necessary for the paving of said street cannot be secured by the contractor after a faithful effort to do so, time as the council may deem necessary shall be given the said contractor to finish said work beyond the time limited in this ordinance contract."
The appellant says there is really no difference in principal between this case and the case of Koch v. Inter-River Drainage Dist., 237 S.W. 176, cited in her brief and which was not mentioned in the opinion handed down in this case. It is upon this case that she relies. We read and carefully considered this case before writing the original opinion and we think it is not in point here. In that case the advertisements provided that the contract must be completed in four months. After the bids were received the city council, disregarding the advertisement, arbitrarily wrote the contract showing the work was to be completed in eight months. In that case the trial court made and filed a finding of facts in which it was found as follows:
"Wherefore the court finds that the tax bills in suit are void, for the reason that the provision in the contract entered into by the city of Poplar Bluff and the plaintiff, V.E. Koch, providing for the completion of the works of sewer district No. 2 in eight months, operated in law a fraud, in view of the fact that the advertisement for bids published in the newspaper doing the city printing stated that the work should be completed in four months; and for the further reason that the action of the council of the city of Poplar Bluff in extending the time for the completion of said works on the 7th day of August, 1916, was without warrant of law, as the time limited in the previous order of February 21, 1916, granting an extension of time, had expired on the 1st day of August, 1916."
The appellate court when passing on the case used this language:
"We only deem it necessary to discuss one question here, for, in our judgment, the disposition of that question settles the controversy. That question is whether the contract was valid when entered into. The trial court held that the provision in the contract allowing eight months in which to do the work, when the advertisements for the bids had stated that it would be required to be completed within four months, was a legal fraud, and invalidated the tax bills issued in payment for the work. In this we think the trial court *Page 907 was right. . . . Our conclusion is that the provision in the contract giving eight months in which to do the work when the notice to bidders allowed but four months rendered the contract and the tax bills void."
No such conditions existed in this case as in the Koch case. The city council in the Koch case undertook to bind itself and the property owners at the time of making the contract. There the notice provided the work should be done in four months, but the council received a bid at a certain price to be completed in eight months and accepted the bid, and, contrary to notices published, entered into a written contract fixing the date at eight months, and because of the contract being different from the notices the court held the contract invalid. No so in this case. Here the notice was given fixing the time; the contract was made fixing the time just as advertised in the notice, and the extension of time was given later, which our courts have held can be done, and which the defendant concedes can be done, but the defendant complains that the provision was written into the contract ordinance which provided that time, as the council may deem necessary, shall be given the contractor to finish the work, beyond the time limited in the notice, in the event any material necessary to the paving cannot be secured by the contractor after a faithful effort to do so. This provision need not have been written in the ordinance and it was not necessary to write it therein, even to bind the city to an extension under certain circumstances. The courts of this State have held, and the defendant concedes, that such an extension could be given, just as effectively as if the provision had not been therein written, then, we think, such a provision had no effect whatever upon the contract, and did not affect in any way the contractor nor the property owners, and in that respect this case is different from the Koch case and we think the Koch case is not applicable.
We considered in our opinion the other points raised in the motion for rehearing, therefore we deem it unnecessary to reconsider them here. The motion for rehearing is overruled.
Cox, P.J., and Bailey, J., concur. *Page 908