Wilson v. Smith
| Decision Date | 25 June 1926 |
| Citation | 215 Ky. 504 |
| Parties | Wilson v. Smith. |
| Court | United States State Supreme Court — District of Kentucky |
1. Municipal Corporations. — Evidence held to support finding that plaintiff to whom contract for sewer construction was let was only nominal party, and that councilman was real party.
2. Municipal Corporations — Contract for Construction of Sewer Held Invalid, where Contractor was Nominal Party, and Real Party in Interest was Councilman (Ky. Stats., Sections 2768, 3484). — Contract for sewer construction for municipality of the fourth class held invalid, in view of Ky. Stats., section 3484, when construed in view of section 2768, where person to whom contract was let was only nominal party and real party in interest was member of board of council of municipality, at time bid was received and contract let, and when most of the work was being done.
3. Municipal Corporations — Abutting Owner Held Not Estopped to Deny Validity of Contract for Sewer Construction though Fully Executed where Councilman was Real Party in Interest. — Abutting owner held not estopped to deny validity of contract of municipality with contractor for sewer construction because real party in interest was member of city board of council though contract has been fully executed on part of contractor, and no fraud, collusion, or unreasonable prices were alleged.
Appeal from Bell Circuit Court.
CLEON K. CALVERT for appellant.
JAMES S. GOLDEN and JOHN HOWARD for appellee.
Affirming.
The board of council of the city of Pineville, a city of the fourth class, on September 2, 1921, passed an ordinance providing for the construction of a system of sewers along certain streets, the cost of construction to be apportioned on the owners of lots abutting on such streets. The mayor was directed to and did advertise for bids for the construction of the sewers and on September 24, 1921, the appellant was awarded the contract for the construction of the sewers, he being the only bidder, his bid being $1.68 per running foot.
The work was completed in January, 1922, and on September 16, 1922, was accepted by the board of council and on the same day it passed a resolution apportioning the cost of the sewers on the abutting property owners, the apportionment being made at the rate of 84 cents per front foot. Under the ordinance the city was to pay for the cost of construction at all street intersections, and this cost, which amounted to more than $2,000.00, was paid.
The appellee owned four lots of ground abutting 100 feet on the street along which one of the sewers was constructed and his apportionment amounted to $84.00. He refused to pay and the appellant filed suit in the Bell circuit court praying judgment for the sum of $84.00 and that he be adjudged a lien on appellee's property.
Appellee answered alleging that the appellant was only a nominal plaintiff and that one C.H. Marshall was the real party in interest; and that while the contract with the city of Pineville for the construction of the sewers had been signed by appellant as principal, that Marshall was the real contractor; and that Marshall at the time the ordinance providing for the construction of the sewers was passed, and at the time the bid was received and the contract let, and during most of the time that the work was being done, was a member of the board of council of the city of Pineville and that, therefore, under section 3484 of Kentucky Statutes, the contract was void.
Proof was taken and the case submitted and the lower court entered a judgment dismissing the petition and from that judgment this appeal is taken.
The only depositions taken for appellant are those of C.H. Marshall and his own. From these it appears that Marshall is appellant's son-in-law; that appellant is a coal miner and had never been in the contracting business and had neither superintended nor done any work of the kind required under the contract. He owned no property, and at the time the contract was let, had made no arrangements to execute bond nor to secure funds or credit for the purchase of supplies needed or for the payment of labor that would be required. Marshall induced two men to sign as sureties appellant's bond to the city, which was for $3,500.00, but one of them required Marshall to sign a writing in which Marshall agreed to make good anything the surety might pay. Marshall purchased the sewer pipe in his own name and gave his personal note for $2,000.00 in payment. He also employed the laborers and paid them out of his own funds either in cash or in merchandise out of his store.
The records of the board of council of the city show that Marshall appeared at one of its meetings after his term of office had expired and...
To continue reading
Request your trial