City of Louisville v. Henderson's Trustee

• Decision Date: 06 March 1890
• Citation: 13 S.W. 111
• Parties: CITY OF LOUISVILLE v. HENDERSON'S TRUSTEE et al.
• Court: Kentucky Court of Appeals

13 S.W. 111

CITY OF LOUISVILLE v. HENDERSON'S TRUSTEE et al.

Court of Appeals of Kentucky.

March 6, 1890

Appeal from Louisville law and equity court. For prior report, see 4 S.W. 187.

"Not to be officially reported."

H. S Barker, for appellant.

Brown Humphrey & Davie, for appellees.

HOLT J.

Under a contract made in April, 1873, with the appellant, the city of Louisville, Isham Henderson undertook to construct for the city an embankment or fill, a part of which was to be made in Beargrass creek, where it was not known how far the dirt would sink before it would reach a sufficient foundation, at the price of 44 cents per cubic yard. The work was completed within the contract period, and received by the city on December 31, 1874. It made certain payments upon the work as it progressed, and on November 7, 1878, the assignee of Henderson brought this action, claiming there was a balance due him of $28,646.01, and asking judgment for this sum, with interest from January 1, 1875. Prior to the doing of the work, an estimate was made of the quantity of dirt it would require but, from the character of the undertaking, this could only be approximated. Indeed, it was only conjecture. The city defended, however, upon the ground that the pay for the work should be confined to a theoretical fill, shaped according to this estimate, instead of the one of broader shape, which was in fact made by Henderson under the direction of the city's engineer. This was a mistaken claim upon the part of the city. It was sustained by the lower court, and the action dismissed. This court, however, denied it, and reversed the judgment below, inasmuch as the measurements named in the estimate were but guesswork, and intended, as far as possible, to merely approximate the extent of the work, and not control the final estimate, or pay it. The city was therefore at fault at the outset. It appearing, however, that some of the dirt furnished had slid out with the soft mud at the bottom of the creek, and formed no part of the embankment, the case was remanded with directions to ascertain its quantity, and allow the contractor for the remainder. Upon the return of the cause, the chancellor, upon a second hearing, held that he was unable to say how much dirt had slid away; and he therefore again dismissed the action. Upon a second appeal, his action was again reversed, (4 S.W. 187;) this court holding that as the quantity of dirt for which pay was claimed was shown to have been furnished to the work, and, as it was done under the supervision of the city's engineer, it should lose the price of the dirt which slid away, unless it succeeded in showing the quantity of it. Upon the third hearing of the cause below, a judgment was rendered for the full sum claimed in the petition, with interest from February 1, 1875. The city now appeals from so much of the judgment only as allows interest, and this is the only question presented upon this third appeal in this case.

It is therefore established by a final judgment that the entire claim sued for should have been paid by the city without suit. In other words, that it was owing to the contractor for work done under a...