City of Louisville v. McNaughton

Opinion of the court by

JUDGE PAYNTER

— Affirming.

The city of Louisville entered into a contract, evidenced by a writing, with the appellee, by which he agreed to- improve a certain street by original construction. The city agreed that he was to have a certain compensation for the improvement which he contracted to make. The city was authorized to make the contract, but a controversy arose with the abutting property owners as to their liability for the cost of construction. It culminated in a suit which reached this court, where it was held that the abutting property owners were not liable for the cost of construction. City of Louisville v. McNaughton, 19 R., 1695, 44 S. W., 380. Following many other cases, this court in that case held that, as the city had ordered the improvement made, and accepted same after it was completed, it was liable to the contractor for so much of the cost of improvement for which he could not have a lien upon the abutting property. McNaughton failing to recover $2,760.52 from the abutting property owners, he brought this action against the city to recover the same.

It is argued that because this court has held the five-year statute of limitations applies to actions against abutting property owners for the cost of street improvements (section 2515, Kentucky Statutes; Kirwin v. Nevin, 111 Ky., 682 (23 R., 947) 64 S. W., 647), that it likewise applies to' an action by a contractor against the city. Section 2515, Kentucky Statutes, does not apply to an action upon a writing, for such action is expressly excepted from its operation. This is not an action created by statute, but it is based upon a written contract which was entered into between the city and the appellee. The city could only be bound when it was authorized to and did make a contract in writing. It is true the city expected the abutting property owners to relieve it from liability by paying the contract price, but the statute did not impose such an obligation upon them. If it had, then it would have been a liability imposed by statute, as they were not the contracting parties. Gosnell v. City of Louisville, 104 Ky., 201 (20 R., 519) (46 S. W., 722); Kirwin v. Nevin, supra. In effect, the city, by its contract in writing, agreed that, if the abutting property owners did not pay the contract price, it would do so. As this is an action on a contract in writing, the 15-vear statute of limitations applies.

The judgment is affirmed.