Campbell v. Snyder

• Decision Date: 30 September 1941
• Citation: 287 Ky. 596,154 S.W.2d 724
• Parties: CAMPBELL et al. v. SNYDER.
• Court: Kentucky Court of Appeals

154 S.W.2d 724

287 Ky. 596

CAMPBELL et al. v. SNYDER.

Court of Appeals of Kentucky

September 30, 1941

Appeal from Circuit Court, Grayson County; George K. Holbert, Judge.

Action by Frank J. Snyder against Wade H. Campbell and others, doing business as McLellan & Campbell, on a contract for road work wherein defendants filed a counterclaim. From a judgment for the plaintiff defendants appeal and plaintiff cross-appeals.

Affirmed.

Rodes &amp Willock and John B. Rodes, all of Bowling Green, for appellants.

J. E Wise, of Elizabethtown, for appellee.

RATLIFF Justice.

In June, 1937, the appellants, J. B. McLellan and Wade Campbell a partnership doing business in the firm name of McLellan and Campbell, contracted with the State Highway Department of Kentucky to construct a state highway known as 31-W from Cave City to a point near Munfordville, Kentucky, a distance of approximately ten miles. Appellants sublet all the excavation work to appellee, Frank J. Snyder, at certain prices per cubic yard, and appellee entered upon the work about July 10, 1937, and did the major portion of it by about October 1, 1937, and then left the work without completing it and moved all his machinery and working force to another job in Nelson County, Kentucky. About December 1, 1937, the State Highway Department ordered all road construction work stopped until spring or about April 1, 1938. Soon thereafter appellants, claiming that the State Highway Department was urging them to complete the job under their contract which provided for a liquidated penalty in a specified sum for each day after a fixed time, and appellee having failed to return to the job and complete it according to his contract with appellants, they (appellants) entered upon the job contracted to appellee and finished it according to the specifications of their contract with the Highway Department and which appellee had contracted with them to do.

The work was completed to the satisfaction of the Highway Department in July, 1938, and accepted, and appellants were paid their contract price by the Highway Department and they, appellants, then paid appellee the sum of $15,580.27 under the contract between them and appellee.

Appellee, contending that appellants had not paid him the full contract price for the work done by him, brought this action against appellants claiming that the work done by him under his contract with appellants amounted to $19,393.22, leaving a balance of $3,811.95 yet due him by appellants which they had failed and refused to pay, and sought judgment against them for that sum.

Appellants filed their answer and counterclaim by the first paragraph of which they categorically denied all material allegations of the petition and by various succeeding paragraphs they set out their counterclaim alleging that appellee had breached his contract and failed and refused to comply therewith according to the terms thereof, and that by reason thereof they were compelled to and did enter upon the work contracted to appellee and completed same according to their contract with the Highway Department which required them to have the work completed within a specified time, and upon failing to do so they were required by the terms of their contract with the Highway Department to pay a liquidated penalty of $25 per day for any delinquency.

Appellants set out in detail in their counterclaim the amount of work they were required to do in the completion of appellee's work as required by the contract, including the amount of excavation, blasting rock, widening ditches, amount of material used, the number of men employed and wages paid to them, and the use of their steam shovel and motor trucks and the fair rental value for the same, aggregating the sum of $5,604.85. Appellants admit, however, that they failed to prove some of the items set out in their counterclaim but they insist that their evidence shows that they are entitled to recover thereon the total sum of $5,368.65.

By reply, amended answer and other subsequent pleadings and orders, the issues were made and the case was transferred to the equity docket and referred to the Master Commissioner. The evidence was taken in open court in the presence of the Commissioner and the court and after the evidence was transcribed by the court stenographer the Commissioner took the case under consideration and made his finding and report to the court.

The Commissioner found that appellee's evidence was insufficient to prove certain items of his claim aggregating the sum of $173.72 and deducted the further sum of $135 for excavation at a point in the road referred to in the record as the "triangle" which was included in appellee's contract, and made a further deduction of $1,267.71 for other excavation aggregating a total sum of $1,576.33 and deducted this sum from appellee's claim of $3,811.95, leaving a balance of $2,235.62 due appellee and recommended judgment for that sum.

Both parties filed exceptions to the Commissioner's report and upon consideration of the exceptions the court overruled all exceptions and entered judgment in favor of appellee as recommended by the Commissioner. The appellants have appealed, insisting that they should recover the full amount of their counterclaim proven by the evidence, namely, $5,368.65, and appellee has cross-appealed, insisting that the court erred in allowing appellants any sum on their counterclaim.

Appellee testified that he performed all the duties, as nearly as possible, required by his contract with appellants before he left the job in October, 1937. He said that Mr. McLellan was on the job every day and that he, appellee, was there quite frequently and that he and Mr. McLellan both watched the dirt and tried to get it balanced so they would have it where it belonged.

Appellee was asked about specific items charged in appellants' counterclaim and testified that he had given appellants credit for dynamite, caps, etc., aggregating the sum of $241.25 which was included in appellants' counterclaim. He further said that he sloped every cut on the job and the highway engineer representing the Highway Department was in charge and was satisfied with the slopes when they finished. He also testified that when the engineer saw anything wrong he would tell appellee's foreman about it and they would go back and do the work to the satisfaction of the engineer. In reference to the charge in the counterclaim that appellee left excess dirt on the grade, he said that in February 1938, he went to see Mr. McLellan and told him that if there was too much dirt left that he would send a tractor and slip grader down and move it when he, McLellan, got ready to finally dress the job if he would notify him, and Mr. McLellan told him that he would notify him and that if he had received notice from Mr. McLellan he would have returned to...