189 Ky. 725 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The city of Frankfort in October, 1917, passed an ordinance for the improvement of certain of its streets, and later let a contract for the reconstruction, grading and resurfacing of said streets to the Asphalt Maintenance Company. The contract was in writing and a bond for the faithful performance of the contract was required of the construction company and it executed the same with the appellee, Fidelity & Casualty Company of New York, as surety. The penalty fixed in the bond was $8,000.00. It reads as follows:
“Know all men by these presents: That we, the Asphalt Maintenance Company of Bluffton, Indiana, as principal, and the Fidelty and Casualty Company of New York, as surety, are held and firmly bound to the city of Frankfort, Franklin county, state of Kentucky, in the sum of eight thousand ($8,000.00) dollars to be paid to the city' of Frankfort, or its certain attorneys, its successors and assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, jointly and severally by these presents.
“The condition of this obligation is such that if the said principal, the Asphalt Maintenance Company shall well and truly keep and perform all the terms and conditions of the foregoing contract, except the last clause in
This action was instituted by the board of council of the city of Frankfort on the bond to recover $8,000.00 for the failure of the Asphalt Maintenance Company to perform the conditions of the contract, the construction company having wholly failed to perform the contract except it rolled some of the streets with a twelve ton roller.
Issue was joined and a trial had before the court without the intervention of a jury and a judgment entered for nominal damages, one dollar, in favor of the city of Frankfort. Being dissatisfied with this judgment and insisting that the bond sued on was for the use and benefit of the public and the amount thereof, $8,000, liquidated damage and the city entitled to recover the whole sum, it appeals.
No bill of exceptions accompanies the record and we are therefore unable to review the evidence or to determine whether the finding of fact by the lower court is correct. The state of the record allows only the inquiry whether the judgment is supported by the pleadings. We think it is.
The streets to be improved were traversed by the tracks of the Kentucky Traction and Terminal Company, which operates an electric railway. By the ordinance under which the improvement was to be made, the cost thereof was to be apportioned between the city of Frankfort and the owners of lots or parts of lots abutting on said improvements, and the Kentucky Traction and Terminal Company was to build or pay for the paving of the street between its tracks and 18 inches on the outside thereof. The street railway company elected to do its own work, as it had a right to do under the ordi
The pleadings fully support the judgment and it is affirmed.
Judgment affirmed.