Floyd County v. Owego Bridge Co.

• Decision Date: 16 May 1911
• Citation: 137 S.W. 237,143 Ky. 693
• Parties: FLOYD COUNTY v. OWEGO BRIDGE CO.
• Court: Kentucky Court of Appeals

137 S.W. 237

143 Ky. 693

FLOYD COUNTY v. OWEGO BRIDGE CO.

Court of Appeals of Kentucky.

May 16, 1911

Appeal from Circuit Court, Floyd County.

Action by the Owego Bridge Company against Floyd County. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.

James Goble and W. Lee Roberts, for appellant.

May &amp May, for appellee.

CLAY C.

Appellee Owego Bridge Company, brought this action against Floyd county, the members of its fiscal court, and the fiscal court, to recover the contract price of three bridges which it had erected over certain streams in that county. On final hearing, judgment was rendered against the county, and it appeals.

It appears that the Floyd county fiscal court, at its regular October term, 1908, entered an order of record, directing the building of two bridges involved in this litigation. One of these bridges was to be erected across Right Beaver creek and one across John's creek. The order appointed T. J. Craft, G. P. Archer, and J. M. Weddington bridge commissioners to superintend the construction, receive bids, and let contract for the performance of the work. Under this order no action seems to have been taken. At its next regular term, which was held in April, 1909, the fiscal court entered the following order:

"Upon motion of T. J. Craft, it is ordered that there be erected and completed a steel bridge, upon stone or concrete abutments, across the left fork of Beaver creek at a point to be determined by the committee hereinafter named, and also one steel highway bridge, to be constructed upon stone or concrete piers and abutments, across John's creek at the present ford of John's creek at what is sometimes called the mouth of Brandy Keg, and also one steel bridge, to be constructed upon stone or concrete piers and abutments, across the right fork of Beaver creek, near the residence of T. J. Craft, at a point where a survey and sounding has been made by John McDyer, civil engineer.

"It is further ordered by the court that there be appropriated, and there is hereby appropriated and ordered to be paid out of the county levy of Floyd county for the years of 1909 and 1910, one-half out of the levy for 1909 and one-half out of 1910, a sufficient amount of funds to erect and complete the aforesaid highway bridge across the left fork of Beaver creek, and also all the necessary approaches, fills, and other ways thereto; and there is appropriated and hereby ordered to be paid out of the county levy of Floyd county for the year 1910 a sufficient amount of funds for the construction and completion of the aforesaid highway steel bridge, piers, abutments, fills, approaches, and ways thereto across John's creek; and there is hereby appropriated and ordered paid out of the county levy of Floyd county for the year 1911 a sufficient amount of funds to complete the aforesaid steel highway bridge, piers, abutments, and all necessary approaches, grades, and ways thereto across the right fork of Beaver creek.

"It is further adjudged by the court that J. M. Weddington, T. J. Craft, and George P. Archer be, and they are hereby, appointed this court's committee for the purpose of receiving estimates and bids for the construction of each and all of said bridges; and they are hereby authorized and empowered to make, enter into, and conclude all necessary contracts and agreements for the erection and completion of any and all of said bridges; and they are hereby authorized to make final and complete settlement for any one or all of the said bridges; and they will report their acts hereunder to this court.

"It is further ordered and adjudged by the court that the said committee shall not make or enter into any contract for the erection or completion of any one of said bridges without first having obtained from the landholders on both sides of the creek all necessary easements and rights of way for the construction and completion of said bridges; and they may procure such surveys, profiles, and blue prints, and specifications as may be necessary for the advancement and promotion of said work, and to do and perform any and all acts necessary to the successful transaction of said business; and any two of said committee may act for the whole committee in the absence of any one member."

After the order was made and entered of record, the three commissioners, who, it seems, are among the best business men of the county (one a prominent farmer and the other two cashiers of banks), began to take steps to carry into effect the order of the court. To this end they obtained rights of way over the lands of various landowners on each side of the streams as sites for the approaches to the bridges, and on the 25th day of June, 1909, entered into three separate written contracts with appellee for the erection and completion of each of said bridges according to certain plans and specifications. Before letting the contracts, the commissioners advertised the time and place at which they would receive bids and let the contracts, by written notices posted throughout the county, in public places and upon the county courthouse, and by correspondence with all the leading bridge and construction companies throughout the country, and by advertisement in the Manufacturers' Record, of Baltimore, Md. The bids were sealed, and, upon the day fixed for opening them, there were some 15 or 20 bridge companies represented. Upon examination, it was found that appellee was the lowest and best bidder on both the substructure and superstructure of each bridge. At this time...