ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY.
MR. JUSTICE LAMAR delivered the opinion of the court.
On the 31st of December, 1879, W. T. Washer, Jacob Danenhauer and Peter Baecker commenced an action in the Circuit Court of the United States for the District of Kentucky against Bullitt County in that State, to recover damages for breach of a certain contract made between Washer and the county, and afterwards assigned by Washer to Danenhauer and Baecker, for the construction by Washer of a bridge over Pond Creek, between Bullitt and Jefferson counties.
A demurrer to their original petition having been sustained with leave to amend, the defendants in error, on the 24th of March, 1880, filed an amended petition.
The original and amended petitions substantially aver that the county of Bullitt, by its duly authorized commissioner, entered into a written contract with plaintiff Washer for the erection by him of a bridge across Pond Creek according to specifications, at prices stipulated therein; that in this contract the county guaranteed payment for the entire work; that the County Court of Bullitt County appointed commissioners, and
notified Jefferson County thereof, requesting it to appoint commissioners to contract for the bridge; that beyond the appointment of such commissioners Jefferson County took no action looking to any co-operation of the two in the work; that thereupon, before the contract was made, the County Court, the presiding judge and a majority of the justices of the county being present, decided that it was necessary to erect the bridge, and having exhausted all means provided by statute for securing the aid of Jefferson County in building it, decided to erect it upon the responsibility of Bullitt County alone; that thereafter on the 16th of July, 1877, the Bullitt County Court, composed as aforesaid, authorized its commissioner, J. W. Ridgway, to report any bids that might be offered, and the amount of the same, and authorized the county judge, W. Carpenter, to receive bids, and to accept or reject the same; that in pursuance of that order the county judge accepted the bid of Washer; that thereafter Ridgway, being thereunto authorized by an order of the County Court, made and entered into the contract with Washer for the construction of the bridge, which contract was afterwards ratified by the County Court, composed as aforesaid, and said court, by an order duly entered of record, directed the levy of taxes to pay for the work done under the contract, and the application of the money raised to the payment of the contractors; that Washer commenced work under that contract, and proceeded with it until he and his assignees were notified by the county to stop work upon the bridge; and that the defendant had failed to perform its contract, and to pay for work done thereunder, to the damage of plaintiffs in the sum of $5325.14, for which sum they prayed judgment.
A demurrer to this amended petition was sustained by the Circuit Court, but upon writ of error from this court the judgment was reversed and the case remanded. Washer v. Bullitt County, 110 U.S. 558. The question raised by the pleadings in that case was, whether Bullitt County had, under the statutes of Kentucky, authority to make the contract sued on, by which, according to the averments of the declaration, it undertook, at its own cost, to build across a boundary stream a bridge, one end of which was in another county.
This court held that the power given by the Kentucky statutes to adjoining counties to construct bridges across boundary streams at joint expense did not take away the common law right of each of the counties to construct such bridges at its sole cost.
It also held, in effect, that the allegations of the petition and amended petition, being admitted to be true by the demurrer, the contract sued on must be held to have been made under that section of the statutes which confers upon the County Court jurisdiction to erect public buildings, bridges and other structures, and not under the section providing for the joint action of contiguous counties, as was contended on behalf of the plaintiff in error; and that therefore the averments of the petition disclosed a right of action in the plaintiffs.
Upon the return of the case to the Circuit Court, Bullitt County filed an answer specifically denying the truth of every material allegation of the petition and amended petition, the chief and controlling defence being that the contract sued on was not the contract of Bullitt County. As a part of its answer the county filed a complete transcript of the orders of its County Court. Plaintiffs replied to the answer, and afterwards, with the leave of the court and against the defendant's objection, filed a second amended petition. Issue was joined, and the case was tried by a jury, resulting in a verdict for the plaintiffs for the full amount claimed by them, upon which judgment was rendered. A motion for a new trial having been overruled, this writ of error was thereupon sued out.
The first assignment of error, namely, that the court erred in allowing the second amended petition to be filed, has been so frequently considered and declared unfounded by this court that it may be dismissed with the remark that amendments are discretionary with the court below, and not reviewable here. See the opinion of the court in the case of Chapman v. Barney, 129 U.S. 667, decided March 5, 1889, and the authorities there cited. The same remark applies to the assignment that the court erred in overruling a motion for a new trial. Arkansas Valley Co. v. Mann, ante, 69, decided March 5, 1889, and the cases there cited.
The leading assignments of error substantially present but one proposition, to wit: Conceding that the county had the power to build the bridge, (as was determined by this court on the former writ of error,) the averments of the plaintiff's petitions were not sustained by the evidence adduced at the trial, and the contract sued on was not made by the county in the mode provided by law.
The statute law of Kentucky applicable to such contracts made by a county is found in Art. 17, § 1,*fn1 c. 28, of the General Statutes ...