Staebler & Gregg v. Town of Anchorage

• Decision Date: 02 December 1919
• Citation: 186 Ky. 124,216 S.W. 348
• Parties: STAEBLER & GREGG v. TOWN OF ANCHORAGE.
• Court: Kentucky Court of Appeals

216 S.W. 348

186 Ky. 124

STAEBLER & GREGG v. TOWN OF ANCHORAGE.

Court of Appeals of Kentucky.

December 2, 1919

Appeal from Circuit Court, Jefferson County.

Action by Staebler & Gregg against the Town of Anchorage. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Burwell K. Marshall, of Louisville, for appellants.

Moorman & Woodward and Hardin H. Herr, all of Louisville, for appellee.

HURT J.

The appellants, Staebler & Gregg, under what we assume that they supposed to be a contract with the town of Anchorage a town of the sixth class, made certain improvements upon a street in the town, and furnished materials therefor, and thereafter, before the completion of the contract, according to its terms, the town repudiated the actions of its officials, or such of them, as purported to make the contract, and refused to permit the appellants to proceed further. The appellants instituted this action to recover of the town the value of the work and materials, to the extent that they had done work and furnished materials in the performance of the alleged contract, and also to recover certain personal property or its value, which they alleged that they were the owners of, and of which the town had taken possession.

A motion by the town to require appellants to make their petition more specific having been overruled, the appellee town filed an answer, the first paragraph of which was a traverse of the averments of the petition, and the second paragraph attempted to set up a counterclaim against the appellants. The appellants demurred generally to the second paragraph of the answer and counterclaim, and the court, upon consideration of same, adjudged that the demurrer relate back to the petition, and sustained the demurrer to both the petition and the second paragraph of the answer. The appellants then amended their petition, and the town insisted upon its demurrer to the petition as amended, which was sustained. The appellants, having been granted leave to again amend their petition, did so by filing an amended petition which purported to set out their cause of action completely and fully. The court then required the appellants to elect which cause of action they would rely upon for recovery, to which they objected, but elected to rely upon the matters as pleaded in the last amended petition, which consisted of two paragraphs. The appellee then demurred, generally, to each paragraph of the petition as amended. The demurrers were sustained, and, the appellants declining to further plead, a judgment was rendered, dismissing their petition, and, the appellee having failed to amend the second paragraph of its answer, setting up its counterclaim, it was also adjudged to be dismissed. From the judgment, dismissing their petition the appellants have appealed.

It will be assumed that any averments in the original and first amended petition which are contradictory of those embraced in the last amended petition were abandoned by the appellants as the last amended petition appears to contain a complete statement of their cause of action and a statement of the actual facts upon which their action is based, and for the purposes of decision it will be unnecessary to consider anything except the facts averred in their last amended petition and the relief there sought. From it the facts upon which their cause of action is based, at least so far as the allegations of the pleadings extend, are substantially as follows: The appellee is a town of the sixth class. The appellants are partners. The board of trustees of appellant enacted an ordinance by which it ordained the improvement and reconstruction of Railroad Avenue between Thompson and Johnson avenues, and that the costs of such reconstruction should be paid out of the general funds of the town, and in accordance with the ordinance the appellee caused plans and specifications of the work to be done and materials to be used to be made and advertised, for the reception of bids to do the work and furnish the materials, and that the contract to do the same would be let to the lowest responsible bidder. The appellants made a bid to do the work and furnish the materials in accordance with the plans and specifications. The bid was in writing, and undertook, if the proposal embraced therein was accepted, that they would enter into a contract to provide themselves with the necessary machinery tools, and means of construction, and to do the work and furnish the materials specified in the plans and specifications, according to the requirements of the engineer of the town, and would take, in full payment thereof, certain sums for the items of work and materials set out in their proposal. The written proposal is set out in full in the petition. It is then averred that their bid was the lowest and best bid, and that thereafter, at a regular adjourned meeting of the board held on April 28, 1916, the board of trustees, unanimously adopted a resolution by which it was provided that the proposal or bid of appellants for construction of the avenue be accepted, except that the proposal or bid for the construction of concrete sidewalks, provided for in the plans and specifications and embraced in the bid, be not accepted, but the remainder of their proposal, the costs of which it was estimated to amount to $7,485.50, be accepted as recommended by the engineer, and that a contract to perform the work and furnish the materials as specified in the plans and specifications, as amended by eliminating that portion, relating to concrete sidewalks, be prepared and executed by appellants and by the appellee by the chairman of the board of trustees. That thereafter, on the 8th day of May, the appellants and the town, by the chairman of its board of trustees, entered into a contract, which was reduced to writing and signed by them. The contract is set out in full in the petition.

The writing, alleged to be a contract between appellants and appellee, recites that, whereas the appellee had advertised for bids for the construction of the street, in accordance with plans and specifications prepared by engineers, in the employ of appellee, and whereas the appellants were the lowest and best bidders and had submitted their proposal or bid in writing, and the writing, containing the bid is attached to the contract and made a part of it, in accordance with the plans and specifications, which are also attached and made a part of the contract, and that the aggregate of the bid amounts to $9,981.50, and whereas subsequent to the making of the bid, but before the execution of the contract, that appellants and appellee have agreed that the specifications and bid be modified to the extent that the sidewalk provided by the plans and specifications should not be constructed, and that the costs of its construction be eliminated from the specifications and bid, and, further, that the appellee should have the right, if it should so elect, to use an asphalt binder, instead of a tarvia binder, as provided in the plans and specifications, and, in the event the appellee elected to do so, the appellants would reduce the amount at which they had proposed to do the work by the sum of $2,420.00, being the cost of 22,000 gallons of tarvia X binder, at 11 cents per gallon, provided, however, that the appellee would furnish the appellants at its costs the asphalt to be used as a binder in tank cars f. o. b. Anchorage, Ky. and should supply the appellants with two tank wagons and a sufficiency of cans for spreading the asphalt. This writing was subscribed by appellants and the Town of Anchorage, by its chairman of the board of trustees. It is then alleged that...