Robertson v. Jefferson County

• Decision Date: 11 November 1924
• Citation: 205 Ky. 479
• Parties: Robertson v. Jefferson County.
• Court: Kentucky Court of Appeals

205 Ky. 479

Robertson v. Jefferson County.

Court of Appeals of Kentucky.

Decided November 11, 1924.

Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

HARDIN H. HERR, LAWRENCE S. GRAUMAN and MORRIS & JONES for appellant.

J. MATT CHILTON and JOHN S. BASKIN for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS — Reversing.

In the year 1913, acting under the authority of the fiscal court of Jefferson county, J. Russell Gaines, as road engineer for that county, entered into a contract with Samuel L. Robertson to reconstruct and make certain repairs on the Harrod's creek bridge in that county. The county was to furnish certain classes of materials and Robertson to furnish the labor, machinery and the remaining material. As compensation Robertson was to receive rent on the machinery, be reimbursed for his expenditures and be paid 10 per cent commission on cost of construction.

Robertson filed sworn statements at the end of each month, showing the amount of his expenditures and the rental value of the machinery employed. Each estimate was examined and approved by Gaines as engineer, allowed by the fiscal court, and on its order a warrant issued therefor by the clerk, the final estimate being certified and allowance made August, 1914. Robertson assigned the warrants to Frank McGrath, who paid him their face value. McGrath presented the various warrants to the treasurer, who stamped them as interest bearing, and later paid them by check, the last being paid in December, 1914.

In November, 1919, the county of Jefferson brought this suit against Robertson and McGrath, alleging that in the final estimate made by Robertson and certified by Gaines it was stated that the total cost of material, labor and commissions due Robertson amounted to the sum of $19,685.43; that Robertson had previously been allowed the sum of $18,150.30; that there was a balance due him of $1,535.13, and that upon this estimate it issued to him a warrant for the latter sum; whereas, in fact there had been allowed and issued to him warrants aggregating the total sum of $19,503.03, leaving the balance due him only $182.38; that thereby he was allowed $1,352.75 more than was due him under the contract; that the warrant of $1,535.13 was assigned to and collected by Frank McGrath. At the time it issued that warrant it relied upon the statement in the estimate that Robertson had only been paid the sum of $18,150.30; but that said statement was untrue and was known by Robertson to be untrue or could have been so known to him by the exercise of ordinary care, and was made by him either fraudulently or by mistake, and that the allowance and payment of the warrant was a mistake on its part. It sought a settlement of the accounts, and a recovery of $1,352.75, with interest from the day the warrant was stamped interest bearing, September 4, 1914.

Robertson and McGrath filed separate answers; both traversed the allegations of the petition, relied upon the statute of limitations, pleaded that at the time of the final estimate the engineer Gaines undertook to make a final settlement of the accounts, and in so doing erred to the prejudice of Robertson in various ways indicated in the pleading, but that such settlement had been accepted and relied upon by the parties, and each was willing to abide by it.

These matters were traversed and proof taken. Gaines was dead at the time, and the lower court properly held the evidence of Robertson as to what occurred between him and Gaines inadmissible, and also held the evidence of certain accountants in explanation of the records to be immaterial. The remaining evidence consists chiefly of estimates, warrants and checks, with some proof as to why the error was not earlier discovered.

McGrath having died the action was revived against his executrix. The chancellor was of the opinion that the error occurred as claimed by the county and gave judgment in its favor against Robertson, but denied a recovery against McGrath's estate. The county appeals from the judgment in favor of McGrath's estate and Robertson appeals from the judgment against him. By agreement the appeals have been considered together, but have not been consolidated.

The amounts allowed prior to the final estimate were as stated by plaintiff, $19,513.03, and it clearly appears that the amount thereof as stated in the final estimate, $18,150.30, was an error; it further appears that the allowance made for May work, $1,352.75, equals the discrepancy and it is strongly argued that the allowance for that month was in this respect erroneously omitted from the final estimate, and such seems to have been the case.

It is argued on the other hand that it is just as plausible to say that the entire estimate for the month of May, both debit and credit, was omitted from the final estimate, and that really there were other charges to the county which were so omitted.

In this regard it may be said that the various items are grouped under different headings in the...