Steele & Lebby v. Ayer & Lord Tie Co.

• Decision Date: 09 December 1932
• Citation: 55 S.W.2d 52,246 Ky. 379
• Parties: STEELE & LEBBY v. AYER & LORD TIE CO.
• Court: Kentucky Court of Appeals

55 S.W.2d 52

246 Ky. 379

STEELE & LEBBY v. AYER & LORD TIE CO.

Court of Appeals of Kentucky

December 9, 1932

Appeal from Circuit Court, Floyd County.

Action by the Ayer & Lord Tie Company against Steele & Lebby and another.Judgment for plaintiff, and defendant named appeals.

Reversed and remanded, with directions.

Combs &amp Combs, of Prestonsburg, for appellant.

Edward P. Hill, Jr., and J. C. Hopkins, both of Prestonsburg, for appellee.

HOBSON C.

On October 3, 1928, appellantsJames A. Steele, Jr., and Thomas Lee Lebby, as a partnership doing business in the name of Steele & Lebby, entered into a contract with Floyd county to construct two concrete bridges across the Big Sandy river one at the upper end of Prestonsburg and the other at the lower end of the town, for the consideration of $159,791.On the same day they entered into a written contract with C. Y Ligon, of Prestonsburg, whereby they sublet to Ligon part of the work consisting of excavating for the piers and underpass, driving piling, etc.; Ligon agreeing in the contract to do the excavating, furnish and drive the piling etc., according to the plans and specifications.He went to work early in November, 1928.He furnished his own tools and supplies, hired and paid his own employees.He was a civil engineer.Among other things, Ligon bought from the Ayer & Lord Tie Company certain piling, which was shipped to him and cost $1,507.46.On December 18, while he was at work on the job, Ligon was shot and killed by one Howard; he was insolvent at his death; his representatives declined to have anything to do with the contract; and Steele & Lebby took charge of the work and finished it.On May 9, 1929, the Ayer & Lord Tie Company filed in the clerk's office of the Floyd countycourt a materialman's lien; there was then due the contractors from the county $6,139.01; and written notice of the claim was then served upon Floyd county.The Ayer & Lord Tie Company on May 17, 1929, brought this action against Steele & Lebby and Floyd county, asserting a lien on the funds due the contractors by the county, and praying judgment against the contractors personally for their debt.The issues were made up, proof was taken which showed the above facts, and on final hearing the circuit court entered a personal judgment against Steele & Lebby for the amount of the claim, and also adjudging that it should be paid by the county out of the balance due Steele & Lebby.From this judgment Steele & Lebby appeal.

By section 2492, Kentucky Statutes, all persons who perform or furnish labor or material for the construction or improvement of any public improvement by contract may acquire a lien thereon by filing in the clerk's office of the county a statement in writing showing the facts.Section 2494 provides: "No lien provided for in this article shall attach unless the person who performs or furnishes the labor or teams shall, within sixty days after the last day of the last month in which any labor was performed or materials or teams were furnished, file in the county clerk's office of each county in which the labor was performed or materials or teams were furnished a statement, in writing, verified by affidavit, setting forth the amount due therefor, and for which the lien is claimed, and the name of the canal, railroad, turnpike or other public improvement upon which it is claimed.Said claim shall be filed and indorsed by the clerk of the court, giving the date of its filing."

The Ayer & Lord Tie Company filed no statement in the county clerk's office within sixty days after the material was furnished.In fact, it filed no statement of any kind until May 9, 1929.No lien may be obtained upon a public highway under this section, but a lien may be obtained under the statute on the fund which is to pay for the improvement.If the Ayer & Lord Tie Company had filed its lien in the county clerk's office in time, it would have had a lien upon the fund due by the county, and might have asserted this lien against the fund.Allen County v. U.S. Fidelity & Guaranty Co.,122 Ky. 825, 93 S.W. 44, 29 Ky. Law Rep. 356, and cases cited.

By the contract between Steele & Lebby and the county, certain specifications were made a part of the...