Atl. Bitulithic Co v. Town Of Edgewood, CC 480.

• Decision Date: 31 October 1933
• Docket Number: No. CC 480.,CC 480.
• Citation: 171 S.E. 754
• Court: West Virginia Supreme Court
• Parties: ATLANTIC BITULITHIC CO. v. TOWN OF EDGEWOOD.

171 S.E. 754

ATLANTIC BITULITHIC CO.

v.TOWN OF EDGEWOOD.

No. CC 480.

Supreme Court of Appeals of West Virginia.

Oct. 31, 1933.

Rehearing Denied Dec. 13, 1933.

Syllabus by the Court.

Points adjudicated on a former appeal or writ of error must be regarded as the law of the case during the further progress thereof, whether the question arises upon the original or supplemental pleadings.

Case Certified from Circuit Court, Ohio County.

Action by the Atlantic Bitulithic Company against the Town of Edgewood. The Circuit Court overruled the defendant's demurrer to the plaintiff's second amended declaration, and certified its ruling for review.

Ruling reversed and cause remanded in accordance with opinion.

S. M. Noyes and J. M. Ritz, both of Wheeling, for plaintiff.

J. J. P. O'Brien and P. J. McGinley, both of Wheeling, for defendant.

MAXWELL, President.

This certification involves the sufficiency of plaintiff's second amended declaration. The trial court overruled the defendant's demurrer thereto.

In different aspects, this case has been twice before this court. Atlantic Bitulithic Co. v. Town of Edgewood, 76 W. Va. 630, 87 S. E. 183, 184, and Atlantic Bitulithic Co. v. Town of Edgewood, 103 W. Va. 137, 137 S. E. 223, 224. The first case was in chancery and had for its purpose the enjoining of the defendant from interfering with the plaintiff in the performance of a paving contract which had been entered into between the parties. This court held (Syllabus, point 3):

"Though the estimated amount of work and material called for by such contract, at the stipulated prices per square yard, for the paving, and the stipulated prices per lineal foot for the curbing, etc., aggregates a sum in excess of such bonds and an amount beyond the constitutional limitation, yet the contract being partible and susceptible of execution to the amount of such bonds and to the extent such municipality is permitted to become indebted, is void only as to the excess of work and material contracted for, and may be so enforced."

In the body of the opinion, Judge Miller, speaking for the court, said:

"Wherefore, in view of these authorities, we are of opinion that plaintiff is entitled to the benefits of its contract and to enforce the same, and to perform the work and labor and furnish the material called for, up to the amount limited by the bonds authorized and other available funds, but that such contract is so far as it exceeds the amount so limited is void and unenforceable."

The second case was an action in assumpsit. We reversed a judgment for $3S,-739.00 in favor of the plaintiff and against the defendant. It is stated in the opinion:

"Upon the trial of the case the plaintiff adduced evidence to establish the charge that it had been prevented by the defendant from performing any part of the contract until after the granting of the alleged injunction by this court and to show what the work would have cost, if it had been done promptly under the contract, and its cost at the time actually performed, the difference being the amount claimed by the plaintiff.

"The plaintiff was permitted to recover the actual cost of the work; the verdict being for the difference between that amount and the funds legally at the disposal of the town (which had already been paid to the plaintiff), notwithstanding the decision in the injunction suit that: 'The plaintiff is entitled to the profits of its contract and to enforce the same, and perform the work and labor and furnish the material called for, up to the amount limited by the bonds authorized and other available funds, but that such contract, in so far as it exceeds the amount so limited, is void and unenforceable.' Atlantic Bithulithic Co. v. Town of Edgewood, 76 W. Va. 630, 87 S. E. 183."

Further in that opinion is this statement: "It is admitted that the defendant had paid the plaintiff, prior to the institution of this action, the proceeds from the sale of $54,000 of bonds authorized for the improvement and all other available funds, in the total sum of $60,966.67. This is the extent of the defendant's liability under the contract, as determined by the decree of injunction providing that plaintiff was entitled to perform 'up to the amount limited by the bonds authorized and other available funds.'"

In the declaration now before the court, there is material change of averments fromthose contained in the declaration which was before the court when the judgment aforesaid was under review. Whereas in the former declaration it is averred that the defendant "willfully and unlawfully refused to permit the said plaintiff to commence its work under said contract or to do any part of said work although the defendant was fully advised that the plaintiff was then and there ready and willing to go on...