Henderson v. Carey-Reed Co.

• Decision Date: 07 May 1918
• Citation: 202 S.W. 882,180 Ky. 449
• Parties: HENDERSON v. CAREY-REED CO.
• Court: Kentucky Court of Appeals

202 S.W. 882

180 Ky. 449

HENDERSON v. CAREY-REED CO.

Court of Appeals of Kentucky.

May 7, 1918

Appeal from Circuit Court, Fayette County.

Action by the Carey-Reed Company against W. H. Henderson. Judgment for plaintiff, and defendant appeals. Affirmed.

Rives &amp Shannon, of Lexington, for appellant.

Richard C. Stoll and W. H. Townsend, both of Lexington, for appellee.

CLARKE J.

The judgment appealed from awarded to appellee, Carey-Reed Company, a lien upon the abutting property of W. H. Henderson for its proportionate part of the cost of the improvement of Ayeres alley in the city of Lexington. Although admitting the contract was regularly let to appellee by the city, and that the work was, after its completion, accepted by the city, the only ground urged upon us by appellant, who was defendant below, is that plaintiff failed to pave, in accordance with its contract, a strip of ground 13 feet wide along the entire west side of the alley.

Having admitted the acceptance by the municipality of the street improvement, and not having proven, or even attempted to prove, the fraud or collusion pleaded in his answer in avoidance of the acceptance by the city, it is clear that under a long line of decisions of this court appellant is concluded upon the question of whether or not the work was done according to contract. In the recent case of Denton v. Carey-Reed Co., 169 Ky. 54, 183 S.W. 262, where a like contention was made, we said:

"Counsel for appellants do not cite any authority sustaining this contention, and it has been held in so many cases by this court that, in the absence of fraud or collusion, the city is the sole judge of whether or not a street has been constructed according to specifications, that we do not deem it necessary now to discuss that proposition, but shall content ourselves with the citation of the following Kentucky authorities: Kentucky Statutes, § 3100; Lambert v. Thornberry, 153 Ky. 523 ; Allen v. Woods, 45 S.W. 106; Murray v Tucker, 10 Bush, 240; Mudge v. Walker [122 Ky. 29, 90 S.W. 1046] 28 Ky. Law Rep. 996; Baldrick v. Gast, 79 S.W. 212; Eversole v. Walsh, 76 S.W. 358."

See, also, City of Maysville v. Davis, 166 Ky. 555, 179 S.W. 463; Joyes v. Shadburn, 13 S.W. 361, 11 Ky. Law Rep. 892; Creekmore v. Central Construction Co., 157 Ky. 336, 163 S.W. 194; 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.

However counsel for appellant insist that, since he pleaded in one paragraph of his answer that appellee failed to pave a part of the alley and appellee traversed this allegation, admitted to be true in the agreed statement of facts, the fact is established that appellee did not comply with his contract, and appellant was therefore entitled to judgment. This contention, as is clearly apparent, entirely ignores the admitted acceptance by the city, and therefore, in the absence of fraud or collusion, is...