157 Ky. 219 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
Plaintiff, Dabney Bisbop, contracted with defendant, Petersburg Coal Company, to build a ditch and construct a dam and embankment at its mine in Hopkins County for the price of $250. Payment having been refused, plaintiff brought this action to recover the contract price. From a verdict and judgment in his favor, the defendant appeals.
Defendant operates a coal mine located on the Louisville & Nashville Railroad at Mannington, Kentucky. Dr. J. B. Sory is its president and general manager, and lives at Daniel Boone, about three miles distant. During the latter part of October, 1910, Sory, acting for defendant, contracted with plaintiff to cut a ditch changing the course of a small creek, and to put a dam in the creek at a point where the ditch began. Plaintiff was also to construct an embankment for a switch track. For this work defendant agreed to pay plaintiff the sum of $250. It was also provided in the contract that the embankment for the switch was to be constructed according to levels furnished by the engineer of the Louisville & Nashville Railroad Company. According to the evidence for plain
After it developed that tbe grade stakes bad never been set, tbe trial court told the jury to disregard all evidence with reference to grade stakes, and to find for plaintiff if they believed tbe ditcb and dam bad been constructed in accordance with tbe contract.
Tbe first error relied on is tbe failure of tbe trial court to require plaintiff to make bis petition more specific. In this connection our attention is called to tbe fact that tbe petition merely alleges that plaintiff agreed and undertook to do and perform certain work and labor in building and making a railroad embankment and dam, and in tbe excavating of a certain ditch near deiendant’s coal mine, without showing tbe size of tbe ditcb, tbe kind of the dam or tbe specifications for the embankment. It is insisted that these are essential and material parts of tbe contract, and should have been pleaded in order for tbe court to determine whether or not tbe contract bad been breached. Even if this be true, we cannot see how defendant was prejudiced by tbe action of tbe trial court in overruling tbe motion. There were only four witnesses present when tbe contract was made. All of these witnesses testified, and on completion of their testimony tbe precise terms of tbe contract as contended for by each party were fully stated to tbe jury. Not only so, but tbe instructions of tbe court were predicated on tbe contract as developed by tbe evidence.
It is also insisted that as there was only a delay of one week between tbe completion of tbe ditch and dam
A reversal is also asked because the court authorized a recovery of the full contract price if only the ditch and dam were built-according to contract, whereas plaintiff was entitled to recover only the contract price, less the reasonable cost of completing the work. While this may be true, the uncontradicted evidence, shows that the embankment was built on a level with the surrounding land, and in substantial compliance with the contract. It not appearing that the grading of the embankment according to the required levels, even if they had been furnished, would involve any substantial outlay, we are not disposed to reverse the case on the ground that the plaintiff recovered more than he should have recovered.
Judgment affirmed.