Mayes v. Lane

• Citation: 76 S.W. 399,116 Ky. 566
• Parties: MAYES ET AL. v. LANE ET AL.
• Decision Date: 28 October 1903
• Court: Court of Appeals of Kentucky

76 S.W. 399

116 Ky. 566

MAYES ET AL. v. LANE ET AL.

Court of Appeals of Kentucky.

October 28, 1903

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by A. C. Mayes and others against J. E. Lane and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Hendrick & Miller, Wm. Marble, and Jno. C. Gates, for appellants.

Bloomfield & Crice, for appellee Katterjohn.

J. D Mocquot, for appellee Hart.

PAYNTER J.

The Christian Church at Princeton burned, and the congregation desiring to rebuild it, entered into a contract with the appellee James E. Lane, a contractor, for that purpose. The contract price was $4,300, but it was reduced to $4,280. Article 4 of the contract reads as follows:

"In consideration of the fulfillment of the agreement herein made by the Contractor, the Owner agrees to pay the said Contractor the sum of Forty-three Hundred & no/100 dollars ($4300.00) in installments as follows 85 per cent. of the cost of the labor and materials incorporated into the construction of the building from time to time as the work progresses and the balance ten days after the entire work has been completed, provided the property is free from all liens or rights of liens for debts due or claimed to be due from the Contractor and satisfactory evidence thereof is furnished (if requested) to the Owners.

All payments shall be made upon written certificates from the Architect to the effect that in their opinion such payments have become due, but no certificates or payments shall be considered as a waiver by the Owner of any of the provisions of this contract, nor shall any waiver of any breach of this contract be held as a waiver of any other or subsequent breach."

Those representing the church, being unwilling to rely upon Lane's obligation, required him to give a bond to secure the church, which he did, with George O. Hart and F. W. Katterjohn as sureties. The bond reads as follows:

"This Agreement Witnesseth:--That whereas James E. Lane, of the City of Paducah, Ky. has entered into a contract in writing of even date herewith, with E. M. Johnson, T. M. Powell and T. J. Johnson as the Building Committee, selected by the members of the Christian Church, of Princeton, Ky. through their Board of Officers, to supervise and direct and contract for the construction of a church building in Princeton, Ky. to furnish the material, build and erect for them a brick church building on the lot of ground on which the Christian Church which was recently destroyed by fire, stood, for the sum of Four Thousand and Three Hundred Dollars ($4,300.00) well and truly to be paid to said Lane, and said Lane to furnish said material and build and erect said church building in strict accordance with the plans and specifications furnished.

Now therefore, in consideration of the premises, and in order to secure said E. M. Johnson, T. M. Powell and T. J. Johnson Building Committee as aforesaid in the faithful compliance by said Lane with the terms of said contract, said Lane and the undersigned F. W. Katterjohn Jr., and George O. Hart, his sureties hereby declare and acknowledge themselves firmly bound and indebted to said E. M. Johnson, T. M. Powell and T. J. Johnson, Building Committee as aforesaid, in the sum of Two Thousand Five Hundred Dollars ($2,500.00); this obligation to be void however if said Lane shall well and truly furnish said material and build and erect said church building in strict accordance with the terms and conditions of said contract, otherwise it shall remain and be in full force and effect."

Pursuant to the contract, Lane began the construction of the church. According to the claim of the representatives of the church and which is sustained by the evidence, Lane did not construct and complete the church according to the plans and specifications and terms of his contract. It will be observed that 85 per cent. of the contract price was to be paid upon the certificate of the architect as the work progressed, and 15 per cent. was to be paid in 10 days after the building was completed, providing the property was free from all liens or rights of liens for debts due or claimed to be due from the contractor. The 85 per cent. was paid before the building was completed. After the contractor had quit the work, but before the building was completed as required by the contract, the 15 per cent. was paid (less something...