108 Ky. 436 | Ky. Ct. App. | 1900
•Opinión op the court by
Reversing.
In Fehler v. Gosnell, 99 Ky., 380; (35 S. W., 1125), the court had under consideration a contract made by the city of Louisville for street improvements by original construction. Section It of the ordinance approved February 5, 1894, was made part of the contract. Part of that section reads as follows: “The contractor shall guaranty the faithful performance of his contract according to this ordinance, and the pavement therein specified and the materials composing the same shall be kept in good repair for the period of five years from the completion of the work and its acceptance by the board of public works; and, to'protect the city as to the character of said work and material and such repairs as may be needed, the board of public works' to be the judge, the contractor shall deposit bonds of the city of Louisville or of the United States, amounting to 10 per cent, of the original contract price of the entire work, with the city treasurer, who shall hold the same, principal and interest, to be applied, so far as need be, in the necessary repairs of said work; and, at the end of said five years, the unexpended balance, if any, to be subject to the order of said contractor.” Under the. law the property owners are required to pay for the improvement, and the city the expenses of 'keeping the streets in.repair. In passing upon the ques
In order to follow the opinion of the court in Fehler v. Gosnell, section 14 of the ordinance whs not made part of the contracts here under consideration, but, in order to avoid the objection to- it, the contracts which the city entered into with the contractors for the improvements., the payment of the cost of which is here involved, a provision was inserted in the contracts as follows, to-wit: “The party of the second part hereby guaranties the work done under this contract, and the materials used in the-construction of the same are^free from defects or flaws,, and this guaranty is for a term of.five years from and after the .acceptance of the work by the board of public-wo-rks. It is hereby especially agreed and understood that this guaranty shall not include any repairs made necessary by any cause or causes other than defective work or-materials used in the construction of the improvements. After the acceptance of the work by the board of public-
We are of the opinion that the city has the right to enter into a contract containing the provisions here in question, and that in doing so the property owner is not burdened with any expense which should properly fall upon' the city in the matter of repairs after the improvement has been completed. It would certainly be a great misfortune for the taxpayers if the municipal authorities of the city of Louisville could not place a condition in a contract for street improvements which would make the contractor responsible to the city thereafter for defects in workmanship and material used in the construction of the improvement. If it could require personal security from the contractors that the improvements should i)e done in a workmanlike manner, and that the materials should be free from defects and' flaws, it has the authority to require a deposit of securities which will afford the same protection. We are of the opinion that the rule