City of Louisville v. Muldoon

• Decision Date: 24 February 1899
• Citation: 49 S.W. 791
• Parties: CITY OF LOUISVILLE v. MULDOON et al. [1]
• Court: Kentucky Court of Appeals

49 S.W. 791

CITY OF LOUISVILLE v. MULDOON et al. ^[1]

Court of Appeals of Kentucky.

February 24, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by M. Muldoon and others against the city of Louisville to recover balance due on a contract. Judgment for plaintiffs and defendant appeals. Affirmed.

H. L Stone, for appellant.

Shackelford Miller, Barnett & Barnett, and Burnett & Burnett, for appellees.

GUFFY J.

Some time prior to August, 1884, Thomas P. Shanks entered into a contract with the city of Louisville for the reconstruction of a part of Third street, in said city, from the south line of Kentucky street to the south line of Shipp avenue according to certain plans and specifications, at the price of about $98,000. It was stipulated in the said contract that 10 per cent. of the amount was to be retained by the city for a period of five years from the reception of the work on the part of the city, as a guaranty for the performance of another stipulation of the contract, which was that the contractor would keep the street in repair for the period of five years, which 10 per cent. so retained was to be invested in United States bonds, and the interest paid to the contractor. It appears that the work was accepted by the city engineer on the 21st day of August, 1884, as being completed. It further appears that Shanks assigned to the appellees, Muldoon and others, his claim against the city for the 10 per cent. so retained as aforesaid, and, the city having failed to pay the same, appellees instituted suit in the Jefferson circuit court on the 11th day of February, 1890, against the city of Louisville, making also Shanks, the Barber Asphalt-Paving Company, and the Louisville Banking Company parties to said suit, it appearing that Shanks had contracted with the asphalt company to keep the street in repair during the five years aforesaid; but neither Shanks, the Barber Asphalt-Paving Company, nor the Louisville Banking Company are parties to this appeal, there being no judgment rendered either for or against the last-named defendants. It was alleged in the petition that Shanks had performed his contract with the city in all respects as to the original construction, as well as kept the said street in repair, which was denied by the city in its answer.

Appellant's motion to transfer to the common-law docket was overruled. After the completion of the pleadings and the taking of testimony, the chancellor rendered judgment in favor of the plaintiffs (now appellees) for the amount claimed, from which an appeal was prosecuted to this court, and judgment reversed. The opinion of the court may be found in 94 Ky. 462, 22 S.W. 847. The opinion, however, did not determine the controversy, and the cause was remanded for a new trial and for further proceedings. After the return of the cause, the action was transferred to the common-law docket, and, after various orders and agreements as to the reading of depositions, etc., the action was submitted to a jury, which failed to agree. Finally, in January, 1897, another jury trial resulted in a verdict and judgment in favor of the appellees against the appellant for the amount claimed, with interest from the 21st of August, 1884, and, the appellant's motion for a new trial having been overruled, it prosecutes this appeal.

The record shows that sundry amended pleadings were filed after the reversal of this case, and some pleadings were offered which were not allowed to be filed. The grounds relied on for a new trial are so numerous that we deem it unnecessary to cite them in detail in this opinion. The court below refused to allow appellant to introduce any testimony tending to show the defective character of the work or material used by Shanks in the reconstruction of the street, and refused to allow any proof introduced tending to show that he did not use the kind of material that the contract and specifications called for. The appellant, on the 12th day of January, 1897 during the trial of the case, offered to file an amended answer and counterclaim, which was refused by the court, and of this appellant also complains. It appears that, on the former jury trial, appellant had been permitted to introduce proof in regard to the failure of Shanks to provide proper material, as hereinbefore indicated; and the refusal so to do upon the last trial, it is claimed, was error, and also a surprise, which ordinary prudence on the part of the appellant could not have guarded against. It is also claimed that the court refused to allow appellant to introduce competent evidence, and allowed plaintiffs to introduce incompetent evidence. Appellant also desired to introduce the record in the case of Thomas P. Shanks against the parties from whom he bought the asphalt used in the construction of said street, in which Shanks had shown by his pleadings, as well as his deposition, that the material was worthless, or, at least, very defective, and of this complaint is made. Appellant also complains of the ruling of the court in permitting George T. Castle to testify as to matters of accounts, amounts, dates, and quantities, when the same were in writing, or of record, and in possession of the Barber Asphalt-Paving Company, and accessible, and could have been produced by plaintiffs; and in refusing to permit appellant to read any part of said Castle's deposition, heretofore taken in this case, in order to contradict his oral testimony, or to call his attention to what he had sworn to in his deposition on the same subject about which he testified. Further complaint is made that Castle was permitted to repeat and allege conversations with Frank P. Carroll, had after the expiration of five years from August 21, 1884,...