Barber Asphalt Pav. Co. v. City of Louisville

• Decision Date: 02 November 1906
• Parties: BARBER ASPHALT PAVING CO. v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

97 S.W. 31

123 Ky. 687

BARBER ASPHALT PAVING CO. v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

November 2, 1906

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

"To be officially reported."

Action by the Barber Asphalt Paving Company against the city of Louisville. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Wm Furlong, John Roberts, and Forcht & Field, for appellant.

A. E Richards and A. B. Bensinger, for appellee.

SETTLE J.

This action was brought by appellant in the Jefferson circuit court, chancery branch, first division, to restrain appellee from selling two bonds of $1,000 each, which had been deposited with it by appellant to secure the latter's compliance with a guaranty for repairs, as provided by certain contracts and accompanying specifications for the reconstruction of several streets of the city of Louisville. The contracts and specifications were filed as exhibits with the petition. The former contain the stipulation that "the contractor, appellant, shall guaranty the faithful performance of the contract according to the specifications. The payment therein specified and the materials composing the same shall be kept in good repair for the period of 10 years from the completion of the work and the acceptance of the same. To protect the city as to the character of said work and the material used, and to compel the contractor to promptly make such repairs as may be needed, the contractor shall deposit bonds of the city of Louisville, or of the United States, amounting to 10 per cent. of the contract price of the entire work, with the city treasurer, who shall hold the same to be used as far as need be in making the necessary repairs in said work, and at the end of 10 years the unexpended balance, if any, shall be subject to the order of said contractor. * * * Should any repairs be needed on the work during the said period of 10 years, the contractor shall have notice in writing of such needed repairs. * * * Should he fail or refuse to begin said repair work within three days, the board of public works may have said repairs made, and charge same to said contractor; and, to pay the expenses of such repairs, may sell for cash as many of the bonds herein mentioned as may be necessary. Said sale to be made at public auction at such time and place as the board of public works may order, and notice of said sale to be given by one insertion in the paper doing the city printing and advertising."

It is alleged in the petition that, notwithstanding appellant's compliance with the contracts for reconstruction of the several streets therein named, appellee refused to return to it the bonds, and was wrongfully proceeding to sell them to pay the alleged cost of certain repairs on the streets which appellants had reconstructed, made necessary by injury to the streets from the leaking of gas from the mains of the Louisville Gas Company, and that its guaranty for repairs does not embrace such injuries to the streets as were thus caused, but only covers such as result from defects in its material and workmanship supplied in the work of reconstruction done by it. The answer of appellee admits the contracts alleged in the petition, and the deposit with it of the bonds in pursuance of the guaranty for repairs, but denies that the guaranty was intended to cover only the material and workmanship of appellant. The answer contains the averments that before the expiration of the 10 years, during which the guaranty required appellant to keep the streets in repair, to wit, in the ninth year, the condition of the streets upon which appellant had worked became such that repairs were necessary; that it gave appellant notice thereof, and demanded that it make the necessary repairs, which it refused to do, and, by reason of such refusal, appellee was compelled to make the necessary repairs, which it did at the cost of $1,915.19, which sum it is entitled to out of the proceeds of the bonds deposited with it by appellant, and its authority to sell them for that purpose was conferred by its contract with appellant. The answer was made a counterclaim against appellant and a cross-petition against the gas company; judgment being asked against the former for the cost of the repairs mentioned, and a sale of the bonds to pay the amount thereof, and if not to be had, judgment against the gas company for that amount as damages for injury to the streets from the leaking gas mains which necessitated the repairs. The court below gave appellee judgment against appellant for the $1,915.19 claimed, directed a sale of the bonds to pay it, and the costs of the action, and dismissed appellee's cross-petition against the gas company. Appellant complains of the judgment, and asks for its reversal.

Manifestly the guaranty to repair is a part of the contract for the reconstruction of the streets. This is admitted by the pleadings,...