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Napier v. Trace Fork Mining Co.

Court of Appeals of Kentucky

December 16, 1921, Decided

No Number in Original


 [*292]   [**766]  OPINION OF THE COURT BY JUDGE CLARKE--Affirming.

This is an appeal by the plaintiff from a judgment which allowed him only $ 315.05, instead of $ 565.05 claimed as the balance due him for constructing a grade for a sidetrack about six hundred feet in length leading from the L. & N. R. R. Company's tracks to defendant's mine under a verbal contract, and which in addition denied him $ 200.00 claimed for extra work performed in connection with the contract.

The amount now involved is therefore less than $ 500.00, and if that were all this court only could have granted the appeal; but a statutory lien on land for the contested amounts is also directly involved and the appeal was properly granted by the lower court. Section 950, Kentucky Statutes; Hatfield v. Richmond, 177 Ky. 183, 197 S.W. 654, and Miller's Appellate Practice, section 24.

The contract, it is agreed, was entered into about September 23, 1918, and provided that plaintiff was to construct the grade [***2]  for the sidetrack by removing about 2,750 yards of dirt from the high points into the low places along the designated route, and prepare the ground for the ties; that if he completed his contract on or before the night of October 20th, later extended to October 25th, 1918, he was to receive $ 1,500.00, but if he did not complete it within that time he was to receive only $ 1,250.00 for his work.

In addition plaintiff claimed defendant was to advance him money as needed for his pay rolls; while defendant contends that it merely consented, after the contract had been fully executed, to make such advancements  [*293]  to plaintiff as it deemed proper and only if the work was being hurried to completion according to contract. Upon this point we think the proof sustains the defendant and that it fully complied with its agreement or promise by the advancements which it made to plaintiff, as the work progressed, amounting, as is agreed, to $ 934.95.

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193 Ky. 291 *; 235 S.W. 766 **; 1921 Ky. LEXIS 232 ***

Napier v. Trace Fork Mining Company.

Prior History:  [***1]  Appeal from Perry Circuit Court.

Disposition: Judgment affirmed.