Napier v. Trace Fork Mining Co.

• Decision Date: 16 December 1921
• Citation: 235 S.W. 766,193 Ky. 291
• Parties: NAPIER v. TRACE FORK MINING CO.
• Court: Kentucky Court of Appeals

235 S.W. 766

193 Ky. 291

NAPIER v. TRACE FORK MINING CO.

Court of Appeals of Kentucky.

December 16, 1921

Appeal from Circuit Court, Perry County.

Action by S. M. Napier against the Trace Fork Mining Company. From judgment giving him insufficient relief, the plaintiff appeals. Affirmed.

Eversole & Turner, of Hazard, for appellant.

Wootton Reeves & Wooton, and B. P. Wootton, all of Hazard, for appellee.

CLARKE J.

This is an appeal by the plaintiff from a judgment which allowed him only $315.05, instead of $565.05 claimed as the balance due him for constructing a grade for a side track about 600 feet in length leading from the Louisville & Nashville Railroad Company's tracks to defendant's mine under a verbal contract, and which, in addition, denied him $200 claimed for extra work performed in connection with the contract.

The amount now involved is therefore less than $500, and if that were all, this court only could have granted the appeal; but a statutory lien on land for the contested amounts is also directly involved, and the appeal was properly granted by the lower court. Section 950, Ky. Statutes, Hatfield v Richmond, 177 Ky. 183, 197 S.W. 654, and Miller's Appellate Practice, § 24.

The contract, it is agreed, was entered into about September 23 1918, and provided that plaintiff was to construct the grade for the side track by removing about 2,750 yards of dirt from the high points into the low places along the designated route, and prepare the ground for the ties; that if he completed his contract on or before the night of October 20 later extended to October 25. 1918, he was to receive $1,500, but if he did not complete it within that time he was to receive only $1,250 for his work.

In addition, plaintiff, claimed defendant was to advance him money as needed for his pay rolls; while defendant contends that it merely consented, after the contract had been fully executed, to make such advancements to plaintiff as it deemed proper and only if the work was being hurried to completion according to contract. Upon this point, we think the proof sustains the defendant, and that it fully complied with its agreement or promise by the advancements which it made to plaintiff, as the work progressed, amounting as is agreed to $934.95.

The preponderance of the evidence is also to the effect that the 2,750 yards of dirt required to be moved from the high places was more than sufficient to make the fills, and that the extra dirt which plaintiff procured from other sources and for which he claims the extra $200 was not needed, but was used by plaintiff because of the shorter haul and less expense to do so rather than use the dirt from the high places on the grade, a part of which he acknowledges he wasted.

Since the commissioner, who under order of court heard and reported upon the evidence, and the chancellor in passing upon the exceptions to his report, reached the same conclusions as we have upon these two questions of fact, we do not deem it...