Janutola & Comadori Const. Co. v. Taulbee

• Decision Date: 20 November 1925
• Citation: Janutola & Comadori Const. Co. v. Taulbee, 211 Ky. 356, 277 S.W. 477 (Ky. Ct. App. 1925)
• Parties: JANUTOLA & COMADORI CONST. CO. v. TAULBEE ET AL.
• Court: Kentucky Court of Appeals

277 S.W. 477

211 Ky. 356

JANUTOLA & COMADORI CONST. CO. v. TAULBEE ET AL.

Court of Appeals of Kentucky.

November 20, 1925

Appeal from Circuit Court, Perry County.

Action by the Janutola & Comadori Construction Company against S. S Taulbee and others. From a judgment of dismissal on demurrer to the petition, plaintiff appeals. Reversed and remanded with directions.

M. K Eblen, of Hazard, for appellant.

D. G Boleyn and W. A. Stanfill, both of Hazard, for appellees.

DRURY C.

By this action, the appellants, whom we will refer to as the plaintiffs, asserted a lien upon the property of the appellees, whom we will refer to as the defendants, for street improvements. A demurrer was sustained to the plaintiffs' petition, they declined to amend, their action was dismissed, and they have appealed.

The city of Hazard is a city of the fourth class, and on July 17, 1922, it passed an ordinance containing the following:

"That each of the following streets shall be improved by grading and paving with concrete, reinforced concrete, water bound macadam, Kentucky rock asphalt, or other bituminous types of construction equally as good. * * * East Main street, district No. 29. East Main street, beginning at the end of the present improved street and running south approximately a distance of 900 feet. * * * The cost and the expense of improving each district shall be paid by the owners of abutting property on each district and according to the number of front feet abutting thereon, and the cost in each district shall be taken separately and assessed against the property abutting on each district."

There was no question made about the adoption of the resolution declaring such work to be a necessity, the passage of the ordinance or the publication of these. This litigation grew out of the fact that on February 5, 1923, the city of Hazard entered into a contract with the plaintiffs for the grading and drainage only of East Main district No. 29. No question is made about the grading and drainage having been done in accordance with the contract, and it is admitted that it has been duly and regularly accepted by the city in the manner provided by law, and that assessments to pay therefor have been properly made and levied upon the property of the defendants.

The circuit court took the view that all the work provided for in the ordinance was not completed, and that no assessment could be made until the work had been finished in accordance with the ordinance, and held that the city of Hazard had no right to let...