157 Ky. 336 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
The general council of the city of Lexington by ordinance duly passed, directed the improvement of Columbia avenue from Bose street to Woodland avenue by the construction thereon of a concrete curbing and guttering and by the construction of the carriage way with macadam. The proposed work having been duly advertised,the Central Construction Company undertook the work of macadamizing the street; F. T. Justice & Company undertook the concrete curbing and guttering, their bids having been accepted by the council and contracts regularly made with them. Alleging that they performed the work as required by their contracts, and that certain of the property owners declined to pay, they brought these suits to enforce a lien on the property. The court adjudged them the relief sought. The property owners appeal.
The court did not err in sustaining a demurrer to some of the answers which simply averred that the council had accepted the work by fraud. The council is the tribunal established by law to determine whether or not the work shall be accepted and its judgment on the subject is like the judgment of any other tribunal by whom a question involving discretion is to be determined. When its action is assailed for fraud the facts constituting the fraud should be set out.
Section 3100, Kentucky Statutes, as amended by the act of 1910 (See Acts 1910, page 315), provides:
“Upon receipt of the engineer’s estimate and the report of the Board of Public Works, as provided in the preceding section, the general council shall carefully consider and investigate, by its committee or otherwise, any protests which may have been filed against the acceptance of the work or the confirmation of the engineer’s estimate of the cost thereof, and shall hear, or cause to be heard by its appropriate committee, and reported to it in substance, any competent and proper evidence which may be offered thereon prior to the acceptance of the work and confirmation of the estimate, and the general council may then accept the work and confirm the engineer’s estimate of the cost thereof, or, if it be of opinion that the work has not been done in accordance with the contract, or that the engineer’s estimate of the cost is incorrect it may require the contractor to perfect or complete the work in accordance with the contract, or it may modify the estimate of the cost of the work to conform to the facts, or both. The determination of the general council shall be conclusive and binding on all parties, and shall not be questioned or contested in any court, except on the ground of fraud or collusion on the part of the general council.”
In Newman on Pleadings, section 426f, it is said:
“In like manner where the plaintiff, under the provisions of the Code of 1854, had in general terms averred*339 that he had duly performed all the conditions precedent on his part, it was not sufficient for the defendant in his answer, in general terms, to deny the performance of the conditions precedent, hut he was required to state the-particular facts relied on by him to show that the plaintiff had not kept the covenant or agreement on his part. So likewise in an answer contesting the validity of a judgment or other determination of a court, or officer of special jurisdiction, because of want of jurisdiction in such tribunal or officer, the defendant ought, it would seem, to set out the facts showing the want of jurisdiction, and it will not be sufficient to deny the jurisdiction in general terms. If the defendant should plead and rely upon such a judgment, it will by the provisions of the Code be sufficient for him to plead in general terms that the judgment was duly given or made; but in responding to such an allegation the spirit and general provisions of the Code seem to require the adverse party to state the specific facts relied on in defense.”
Section 122 of the Code provides:
“In pleading a judgment or determination of a court or officer, it is not necessary to state the facts conferring jurisdiction; but it shall be sufficient to state that the judgment or determination was duly given or made.”
While under this provision of the Code, the rule is that the plaintiff may aver that the decision was duly given, if the defendant was simply allowed to traverse the allegation, no intelligent issue of fact would be joined. So we held in Kuhling v. Reidenhorn, 99 S. W., 646, that a plea by the defendant charging that the judgment of a magistrate was obtained by fraud, was insufficient, and that the facts must be stated’, so that an issue might be joined upon them. We have also applied this rule in the case of awards made by arbitrators; (Phillips v. Phillips, 81 Ky., 147) and we see no reason why it should not apply to a decision of a city council which is by law made the arbiter to determine whether work has been performed in accordance with the contract. As the answers disclose no facts showing fraud on the part of the council or the contractors, the court did not err in sustaining the demurrer to this part of them.
Judgment affirmed.