Meacham Contracting Co. v. City of Hopkinsville

• Decision Date: 18 May 1915
• Citation: 176 S.W. 187,164 Ky. 703
• Parties: MEACHAM CONTRACTING CO. v. CITY OF HOPKINSVILLE.
• Court: Kentucky Court of Appeals

176 S.W. 187

164 Ky. 703

MEACHAM CONTRACTING CO. v. CITY OF HOPKINSVILLE.

Court of Appeals of Kentucky.

May 18, 1915

Appeal from Circuit Court, Christian County.

Action by the Meacham Contracting Company against the City of Hopkinsville. Judgment for defendant, and plaintiff appeals. Affirmed.

Downer & Russell, of Hopkinsville, for appellant.

W. H Southall, of Hopkinsville, for appellee.

CARROLL J.

The city of Hopkinsville made a contract with the Meacham Contracting Company for the construction of a sewer. One clause in this contract reads as follows:

"In estimating the final cost for this work at the above unit prices, it is agreed that the city of Hopkinsville shall pay $3,000 in cash, or its proportion of the work to Water street, and shall give as additional consideration an apportionment claim against the Illinois Central Railroad Company, for said railroad's proportion of the cost for 420 feet, more or less, beyond Water street, in accordance with the engineer's estimate, based on the unit prices as required by ordinance No. 74, approved October 24, 1911. Should the cost of the sewer upon final estimate exceed the $3,000 appropriated by the city, and the amount apportioned against and paid by the Illinois Central Railroad Company, the excess shall be paid by voluntary subscriptions of those benefited by the sewer, or by appropriations."

It will be observed that in this clause the city was to give to the contracting company an apportionment warrant against the railroad company for its part of the cost of the improvement, and that it was the plain meaning of this clause, as is agreed by counsel for both parties, that the contracting company should accept this apportionment claim against the railroad company in part settlement of its charge for the improvement.

It appears that the railroad company disputed its liability to pay any part of the cost of this improvement, and, when upon request it declined to pay to the contracting company the apportionment claim of $1,425, assessed against it, the contracting company brought this suit against the city seeking to recover from it the amount alleged to be due by the railroad company and which it refused to pay.

The action against the city was based on the ground that the clause in the contract before mentioned was inserted by mutual mistake of the parties to the contract, the allegation being that the written contract with this clause in it does not express the real intention of the parties and is erroneous and defective in substance, in that:

"It makes the plaintiff accept as an absolute and unconditional payment, on its claim against the defendant for said work, the defendant's claim against the Illinois Central Railroad Company for the portion of said work which defendant claims said railroad company should pay for. The plaintiff states and charges that it did not, in said contract, at any time, agree to take or accept the defendant's said claim against Illinois Central Railroad Company, as payment on its claim for said work against the defendant. * * * And plaintiff again states and charges that the said errors and defects occurred when said contract was reduced to writing, by the mutual mistake and oversight of the parties."

The averment was further made that the railroad company refused to pay the claim, and the contracting company prayed that the contract be reformed so as to make it express the true intention of the parties, and that it have judgment against the city for the amount of this claim.

The answer contained a denial of the averments of the petition, and, when the case came on for hearing, the trial court submitted to a jury the issues as to whether there was a mutual mistake in the contract, instructing them that:

"You will find for the defendant in this case, unless you believe from the evidence that, at the time of the making of the contract for the construction of said sewer, it was agreed between the parties that plaintiff was not to accept said apportionment warrant as part payment on the contract price for the construction of said sewer, but was to receive same only for collection, and, by mutual mistake and oversight of the parties, said conditions were omitted from said writing, and that said writing was by mistake, or oversight, made to state that plaintiff was to receive said apportionment warrant in part payment of said contract price, in which event you will find for the plaintiff."

It is agreed that the instructions given by the court presented correctly the law of the case, and under the evidence and instructions the jury found a verdict for the city, and the contracting company appeals from the judgment on the verdict.

It appears from the evidence, without dispute or contradiction that, after the contract containing the clause here in question had been reduced to writing, it was submitted to the chief officers of the contracting company and carefully read and considered by them; also, that the mayor of the city, who was acting for the city in executing the contract, as well as the officers of the contracting company, fully understood its meaning and effect. This being true, it is, of course, manifest that the parties did not...