Creekmore v. Central Const. Co.

• Decision Date: 10 February 1914
• Citation: 157 Ky. 336,163 S.W. 194
• Parties: CREEKMORE et al. v. CENTRAL CONST. CO.
• Court: Kentucky Court of Appeals

163 S.W. 194

157 Ky. 336

CREEKMORE et al. v. CENTRAL CONST. CO.

Court of Appeals of Kentucky.

February 10, 1914

Appeal from Circuit Court, Fayette County.

Action by the Central Construction Company against A. W. Creekmore and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. C G. Hobbs and Thompson & Thompson, all of Lexington, for appellants.

Stoll &amp Bush, of Lexington, for appellee Central Const. Co. Forman &amp Forman, of Lexington, for appellee Justice & Co.

HOBSON C.J.

The general council of the city of Lexington, by ordinance duly passed, directed the improvement of Columbia avenue from Rose street to Woodland avenue by the construction thereon of a concrete curbing and guttering and by the construction of the carriageway with macadam. The proposed work having been duly advertised, the Central Construction Company undertook the work of macadamizing the street. F. T. Justice & Co. undertook the concrete curbing and guttering; their bids having been accepted by the council and contracts regularly made with them. Alleging that they performed the work as required by their contracts, and that certain of the property owners declined to pay, they brought these suits to enforce a lien on the property. The court adjudged them the relief sought. The property owners appeal.

1. It is insisted for the property owners that Columbia avenue was not a street of the city, and that the general council was without authority to order its improvement. The facts are that Columbia avenue was a part of a tract of land conveyed more than 20 years ago to the Columbia Heights Land Company, which caused it to be laid off as a subdivision of the city of Lexington, cutting up the land into city lots, laying off streets across it, and selling the lots. The territory was afterwards taken into the city; the plots of the subdivision having been duly recorded. We have held in a number of cases that under such circumstances ways thus laid off become streets of the city when the land is taken into the city. City of Covington v. Hall, 98 S.W. 317; City of Louisville v. Mutual Life Ins. Co., 147 Ky. 141, 143 S.W. 782, and cases cited; Acts 1910, pp. 307, 308.

2. The defendants pleaded in their answers that the work was not done in accordance with the contract and was in several respects defective. But the council had regularly accepted the work, and their action is conclusive upon the property owner, in the absence of fraud or collusion. Nevin v. Roach, 86 Ky. 494, 5 S.W. 546, 9 Ky. Law Rep. 819; Lovelace v. Little, 147 Ky. 137, 143 S.W. 1031, and cases cited.

3. The defendants alleged that the work had been accepted by the council by fraud and collusion with the contractors. But the proof taken utterly fails to establish the allegation or to show that the council did anything that it ought not to have done.

The court did not err in sustaining a demurrer to some of the answers which simply averred that the council had accepted the work by fraud. The council is the tribunal established by law to determine whether or not the work shall be accepted, and its judgment on the subject is like the judgment of any other tribunal by whom a question involving discretion is to be determined. When its action is assailed for fraud, the fact constituting the fraud should be set out.

Section 3100, Kentucky Statutes, as amended by the acts of 1910 (see acts 1910, p. 315), provides: "Upon receipt of the engineer's estimate and the report of the board of public works, as provided in the preceding section, the general council shall carefully consider and investigate, by its committees or otherwise, any protests which may have been filed against the acceptance of the work or the confirmation of the engineer's estimate of the cost thereof, and shall hear, or cause to be heard by its appropriate committee and reported to it in substance, any competent and proper evidence which may be offered thereon prior to the acceptance of the work and confirmation of the estimate, and the general council may then accept the work and confirm the engineer's estimate of the cost thereof, or, if it be of opinion that the work has not been done in accordance with the contract, or that the engineer's estimate of the cost is incorrect, it may require the contractor to perfect or complete the work in accordance with the contract, or it may modify the estimate of the cost of the work to conform to the facts, or both. The determination of the general council shall be conclusive and binding on all parties, and shall not be questioned or contested in any court, except on the ground of fraud or collusion on the part of the general council."

In Newman on Pleadings, § 426f, it is said: "In like manner where the plaintiff, under the provisions of the Code of 1854, had in general terms averred that he had duly performed all the conditions precedent on his part, it was not sufficient for the defendant in his answer, in general terms to deny the performance of the conditions precedent, but he was required to state the particular facts relied on by him to show...