180 Ky. 807 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
In November, 1899, the common council of the city of Frankfort, a city of the third class, passed an ordinance providing for the improvement of Second street, between the east line of Conwav street and the west line of Logan street, by grading and paving it with vitrified brick. The improvement provided for was to be ‘ ‘ át the grade heretofore reported by the city engineer and shown by profile now in the city clerk’s office and hereby established as the proper grade for said pavement.” The ordinance does not show what engineer established the grade referred to therein but the proof shows that it was D. M. Woodson. Shortly after the passage of the ordinance
Miss Hallie Herndon owned property on the north side of the improved portion of the street and her portion of the cost of the improvement as apportioned and approved by the city council was $667.29, and the plaintiff brought this suit against her on December 24, 1901, seeking to enforce his lien against her property for the amount assessed against it.
A demurrer filed to the petition was overruled, followed by an answer'in which many defenses were relied upon, and it was sought by counter-claim to recover $1,500.00 against plaintiff as alleged damages to defendant’s property because of the construction of the work in such manner as to cause the water from the street to overflow the sidewalk and run upon plaintiff’s property, damaging a number of small frame business houses located thereon. This damage was alleged to have been produced for only a distance of about 85 feet west from
Among the defenses relied upon in the answer were, that at the time of the filing of the suit all of Second street between Conway and Logan had not been completed according to the contract, although it was not denied but that the portion of it running in front of defendant’s property had been completed; that the advertisement for the letting of the work did not conform to the terms of the ordinance because it did not confine the work between the east line of Conway street to the west line of Logan street, but said that it would extend from the west side of Conway street to the east side of Logan street; that the work was not done accordng to the grade established by the ordinance providing for the improvement but that it was changed and altered by the mayor and city engineer as the work progressed; that the ordinance provided that the work should be guaranteed by the contractor for five years, which it was claimed was contrary to law and vitiated the contract; that the entire improvement extending the whole length of the street ordered to be improved had not been completed within the time specified by the contract; that the contract was not entered into by the city of Frankfort but only by its mayor, W. S. Dehoney; that all parts of the street had not been improved according to the ordinance and according to the contract because there was no brick pavement between the rails of the street car line in the center thereof and for two feet from the outside of the rails; that the contractor, Walter Brawner, had not filed with the board of public works the affidavit required by section 3444 of the Kentucky Statutes, being a part of the charter of cities of the third class, disclosing the names of all persons directly or indirectly interested in the contract and stating that none of the parties interested in the contract, including himself, was forbidden by the charter of cities of the third class from entering into any contract with the city, and that the improvement was not an original construction of the street but was in the nature of repair work and reconstruction.
As hereinbefore stated, a demurrer was filed to all of the answer except the paragraph which contained the counter-claim against the plaintiff. The cause dragged its weary way through the court until 1905, when the defendant, Miss Hallie Herndon, died, leaving the appel
All of the defenses urged here except the right to maintain a counter-claim against the contractor and the city for the consequential damages done to defendant’s property because of the character of improvement, but not resulting from any negligent manner of doing the work, were relied upon and urged as defenses in the case of Lindsey v. Brawner, 29 Ky. Law Rep., 1236, which was a suit by the same plaintiff against an abutting property owner on the same side of Second street to subject his property to a lien for the apportionment of the price of the work assessed against it. The same contract for the same work was involved in that case as is involved in the instant one, but the property involved therein was one square west of that of the defendants here. It was held in that case, construing the same contract and passing upon the same defenses, that sections 3451, 3453 and 3458 of the statute when construed together allowed the contract to be made and entered into in the manner complained of and when ratified and approved by the city council, as was done in this' case, it to all intents and purposes complied with all the requirements of the statute giving a lien upon the abutting property to the con
“It will thus be seen that by the statute the work must be performed under the supervision of the mayor and engineer and subject to the acceptance of the council; that when the council shall have passed an ordinance and made a contract pursuant- to it, and shall have received the work as done according to contract, then the liability of the owners of the property chargeable' with the cost shall be fixed, and in such cases the defendant shall not be allowed to make the defense that the work was not done according to contract, as against the plaintiff in the action, but that the court trying the case shall have the power to correct any mistake or error of the city engineer, or of the common council, so as to do complete justice to all parties.”
The court then refers to the cases of Gleson v. Barrett, 106 Ky. 125; Orth v. Park, 117 Ky. 779, and Lindenberger Land Co. v. Park, 27 Ky. Law Rep. 437, then adds:
‘ ‘ The case falls within the rule thus laid down. The provision in se&tion 3453 that in such cases the defendant shall not be allowed to make defense that the work was not done according to contract, is to be read in connection with the provision in section 3458 that the court trying the case shall have the right to correct any error or mistake made by the city engineer or council so as to do complete justice to all parties. The meaning of the two sections taken together is that the defense that the work was not done according to contract shall not exempt . the property from liability, but that the court trying- the case shall render such judgment against the property as will do complete justice to the parties. ’ ’
It must be admitted that the criticism which counsel for appellants make of the interpretation given to the sections of the statute in that opinion is not altogether without merit, and if the question were being
What we have heretofore said is sufficient to show that the suit was properly revived against the heirs of. the original defendant. The insistence that it should have been revived against her administrator is without merit, since no personal judgment could be obtained against the owner of the abutting property in cases like this, nor was any attempted to be rendered.
Briefly considering the objections to the disallowance of the counter-claim, it is the settled policy of the law generally, and which prevails with this court, that in this character of case the municipality, although it might be liable for damages in an independent suit, as we shall see, can not be made to respond in such damages upon a cross-petition or counter-claim in a suit like this brought for the purpose of enforcing the lien against the abutting property for the price of the improvement. The reason assigned by the law for disallowing damages as a defense in this character of proceeding is that the
amount sought to be collected is in the nature of a tax and it can not be offset by independent causes of action between the city and the property owner. Bayes v. Town of Paintsville, 166 Ky. 676; Bodley, &c., v. Finley’s Ex’r, &c., 23 Ky. Law Rep. 851, and Board of Coun
In the two cases of Bodley, &c., v. Finley’s Ex’r, &c., and Board of Council of the City of Frankfort v. Brislan, supra, it was held that a counter-claim might be maintained in this character of suit against the contractor when such counter-claim or set-off arose and grew out of matters independent of the execution of the contract. In the Brislan case the counter-claim sought to be asserted was for tort committed by the contractor by trespassing upon the defendant’s property and attempting to improve it as a part of the street. In the Bodley case the defense was in the nature of a set-off, being a debt which the property owner held against the contractor. The Brislan suit was brought by the city not in its municipal capacity but as assignee of the contractor, and this court held that ‘‘as assignee of the contractor’s claim the city occupies no better position than the contractor and appellee to set up against it any claim for damages that he could have asserted against the contractor.”
In this case, however, the alleged claim for damages is not bottomed upon facts independent of the contract, but grows out of the doing of the work itself, and if the contractor in such instances could be made to respond in damages it would deter many persons from bidding for such contracts, and municipalities in carrying out their governmental duties to improve their highways would find great difficulty in securing bidders and having the price increased so as to cover the possible loss which might be sustained by damage suits brought by abutting property owners. Our conclusion, therefore, is that the damages sought to be recovered by the coun
This dispenses with the necessity of passing upon the correctness of the ruling of the court in refusing to submit to the jury the issue raised by the counter-claim.
Wherefore, the judgment is affirmed.