City of Louisville v. Henderson

• Citation: 68 Ky. 515
• Parties: City of Louisville v. Henderson, & c.
• Decision Date: 07 July 1869
• Court: Kentucky Court of Appeals

68 Ky. 515

City of Louisville v. Henderson, & c.

Court of Appeals of Kentucky.

July 7, 1869

1. The contractor bound himself, by his contract with the city of Louisville, not to sue the city until it shall finally be adjudged that the property owners are not liable for the cost of the improvements on the street in front of their property. This stipulation is void, and does not exempt a lot-owner from the payment of the sum assessed against him for such improvement.--

And under section 40, of the Civil Code, it is the duty of the court, before whom a controversy is pending, to order all persons interested to be brought before it, although such an agreement or stipulation might have been made by them.

2. The city and owners of property fronting on the streets improved may be sued in the same action.

3. The contractor was required, by his contract, to procure, at his own expense, the names of the owners of grounds fronting said improvements. This did not exempt the property owners from payment for such improvement.

4. The contractor was required, by his contract, to keep his work in repair for six months after its reception by the general council. This did not exempt the property owners from payment. This stipulation is construed to mean that the contractor was only bound to make good such portions of his work as might prove, within the specified time, to have been defectively done.

APPEAL FROM LOUISVILLE CHANCERY COURT.

J. F BULLITT, For Appellant,

CITED--

City Charter of Louisville of 1851, art. 7 secs. 2, 6, 10.

Act of Feb. 18, 1864, sec. 7, Session Acts, p. 434.

2 Parsons on Contracts, pp. 765-6, and cases cited, and pp. 535 to 547.

BARRET & ROBERTS, For Mrs. Ripley and Mrs. Johnson.

OPINION

PETERS JUDGE:

This controversy, being a real one, was presented to the Louisville chancery court, having jurisdiction of the subject, upon facts agreed, which will be hereafter set out at some length, in order that the questions involved may be distinctly presented and separately disposed of. The facts as agreed, are substantially to the following effect:

Dennis, who was plaintiff below, graded, curbed, paved, and macadamized the unpaved portion of Lytle street, from Sixteenth to Seventeenth streets, in accordance with the terms and stipulations of a contract therefor, entered into between him and the city, by its mayor, and which was subsequently approved by a resolution of the general council of the city. Said contract was made in pursuance of a special ordinance, filed as an exhibit " B," which had been duly passed by each board of council of the city, by a vote of two thirds of the members elect, taken by yeas and nays, and recorded on the journals.

The contract for said improvement constitutes a part of the agreement, and is referred to as exhibit " A," as does also exhibit " C."

Exhibit " D" is the copy of an ordinance of the city, adopted June 18, 1859, the 10 th section of which requires contractors to keep their work in repair six months after its reception by the general council; and that said section has formed a part of all contracts with the city for street paving, otherwise than with boulders or the Nicholson pavements, whether ordered to be done at the expense of the city or property owners; and although said ordinance was repealed June 27, 1864, the 10 th section was retained.

That since 1853, when boulder pavements were first made in the city, all contracts therefor contained the following provision:

" All streets to be kept in repair by the contractor, at his own expense, for one year after completion, and after they are received by the general council."

That streets have been bouldered in the city, some at the costs of the city, and others at the costs of the owners of property fronting them; and the contracts were the same in all cases concerning said repairs.

That all the property on both sides of Lytle street, between Sixteenth and Seventeenth streets, fronting the improvements, which are the subject of this controversy, was owned, by the defendant Isham Henderson, and one Dupont, when the contracts for the same were made, and still belongs to them.

That the affidavits of the persons named in the agreement, who are street contractors in said city, are to be read as evidence in the case, if the same are relevant and competent, they having been excepted to by Henderson on those grounds. And that either party might read as evidence certified copies of any ordinance of the city desired to be so read.

It was further agreed that Henderson owned forty feet of ground, fronting on both sides of said improvements, and that apportionment warrants have been issued against him, in favor of plaintiff, for two hundred and twenty-four...