Opinion
June 1, 1973.
Appeal from the Bell Circuit Court, W. R. Knuckles, J.
Glenn W. Denham, Denham, Ralston Nagle, Middlesboro, E. David Marshall, Marshall Marshall, Lexington, for appellant.
Robert J. Watson, Watson Watson, Middlesboro, for appellee.
In this action between a paving contractor and a real estate developer the contractor recovered a verdict and judgment in the full amount of its claim for work done by it under a written agreement with the developer. The developer's claim that the work was defective was rejected by the jury.
We find no error except in allowing the contractor to recover the amount of sales tax paid by it for the material used in performing its paving contract. The contract provided that the job would be done at a unit price per square yard. This did not constitute within the context of KRS 139.260 a sale of the materials used in performing the contract. The number of tons used was relevant to the controversy only to the extent that this figure was used by the contractor as an indirect method of computing the number of square yards it had paved.
The judgment is affirmed in part and reversed in part with directions that appellee's recovery be reduced by the amount awarded for sales tax.
PALMORE, C. J., and MILLIKEN, OSBORNE, REED, STEINFELD and STEPHENSON, JJ., sitting.
All concur.