Home/Court of Appeals of Kentucky/Pittsburgh Filter Manufacturing Co. v. Smith

Pittsburgh Filter Manufacturing Co. v. Smith

196 S.W. 150, 176 Ky. 554, 1917 Ky. LEXIS 89
CourtCourt of Appeals of Kentucky
DecidedJune 22, 1917
StatusPublished
Cited by7 cases

This text of 196 S.W. 150 (Pittsburgh Filter Manufacturing Co. v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittsburgh Filter Manufacturing Co. v. Smith, 196 S.W. 150, 176 Ky. 554, 1917 Ky. LEXIS 89 (Ky. Ct. App. 1917).

Opinion

[555]*555Opinion op the Court by

Chiep Justice Settle

Affirming.

The Frankfort Water Company, desiring to build a filter plant at its pump-house on the Lawrenceburg pike near the city of Frankfort, in 1912 employed the appellant, the Pittsburgh Filter Manufacturing Company, to construct the filter plant at the price of $65,-000.00, plus necessary extra work. The appellee, D. D. Smith, contracted with the appellant, Pittsburgh Filter Manufacturing Company, to do all the work of excavation for the foundation and bed of the plant, at the price of $1.00 per cubic yard, to be completed December 1st, 1912. Both' of these contracts were reduced to writing. ' ■

The site of the Frankfort Water Company’s pump and boiler house is on the Frankfort and Lawrenceburg pike at the foot of the tall hill or bluff separating the State Capitol grounds from the pike and the Kentucky River. The filter plant, as completed, extends to within a foot of the line of the pike; its wall at one end adjoins the wall of the boiler house of the water company, and the other end is within ten feet of the large concrete smoke stack of the water company; the rear wall extending its entire length is against and built into the hill. The pump house and residence of the water company’s engineer are across the pike and on the bank of the river...

The excavation undertaken by the appellee, D. D. Smith, for the foundation and bed of the plant was in removing from the base and side of the hill the earth and rock to make room for its construction. Though the excavation was originally estimated at seven thousand cubic yards, in the nature of the case the estimate was only an approximate one; the material to be removed consisted, near the surface, of loose and seamy rock and earth, and, toward the bottom of the basins, of solid rock. Appellee did not complete the work until some time in Jun.e, 1913. In the view of appellant, at the contract price all the work he did amounted to $8,418.25, of which sum it paid him $7,871.50, leaving as claimed bv it, a balance due him on the contract of $546.75. On the other hand, it is appellee’s contention that the work done by him amounted, in addition to what was paid him, to $6,726.70, made up of the $546.75 ad[556]*556mitted "by appellant to be due hiifi as a balance, plus $1,001.41 for extra work of excavation on the' slope of the hill; $2,300.00 for extra work on the upper basin of the filter and, substantially, $2,878.54 for .similar work on the lower basin. The parties failing to come to a settlement, appellee sued appellant in the Franklin circuit Court to recover the $6,726.70, and to' enforce a mechanic’s or materialman’s lien on the property of the Frankfort Water Company to the extent of its indebtedness to appellant under its contract with the latter, not exceeding appellee’s claim. Appellant, by its answer, admitted the item of $546.75, but controverted all( .the other items embraced in the $6,726.70 sued for by appellee, and pleaded a counter-claim of $1,369.27' for damages sustained by it on account of appellee’s alleged' delay in completing the contract, for which amount it asked' judgment against him credited by the admitted item of $546.75. On the hearing the circuit court allowed $4,943.53 of appellee’s claim, and allowed to appellant $490.00 on its counter-claim, leaving a balance in appellee’s favor of $4,453.53, for which and his costs, he was given judgment against appellant; and from that judgment the latter has appealed.

While the judgment allowed appellee for extra excavation on the slope of the hill the entire $1,548.16, claimed by him for that work, as this item includes the $546.75 admitted by appellant’s answer, $1,001.41 is all of the item allowed about which there is any controversy on the appeal. The remaining items allowed appellee by the judgment are the sums claimed by him for. extra work on the upper and lower basins, aggregating $3,395.37; $2,300.00 of which was allowed for the extras on the upper basin and the remainder for extras on the lower basin. These items, together with so much of the judgment as rejects a part of the counter-claim, are complained of by appellant.

We here insert a diagram showing a cross-section of the work, which, although imperfect, will in some sort serve to show the features of the extra work of excavation done in the slope of the hill.

[557]

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Cite This Page — Counsel Stack

Bluebook (online)
196 S.W. 150, 176 Ky. 554, 1917 Ky. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburgh-filter-manufacturing-co-v-smith-kyctapp-1917.