Opinion
February 13, 1953.
Appeal from the Wayne Circuit Court, Terril A. Wilson, J.
W.C. Dabney, Monticello, for appellant.
C.C. Duncan, Monticello, L.C. Lawrence, Jamestown, for appellee.
Holder, Coe and Lawrence, contractors for the construction of a new courthouse for Wayne County, brought an action against the county to recover certain sums alleged to be due under the contract. Upon a jury trial, a verdict was returned for the amount claimed, less the sum of $2,000, which the jury found would be the cost of making repairs to eliminate water leakage in one corner of the building. From the judgment entered upon the verdict, the county appeals.
The sole complaint of the county seems to be that the contractors should have been denied any recovery until they repaired the building themselves, rather than allowing the cost of the repairs to be deducted from the balance due them under the contract.
We find nothing in the judgment that is prejudicial to any substantial rights of the county. The sum of $2,000, which the jury deducted from the amount claimed by the contractors, represents the highest estimate, by the county's own witness, of the cost of making the repairs. It is conceded that the contractors substantially performed their contract. Although the contract permitted the county to withhold a portion of the contract price, for one year after completion and acceptance of the building, to secure the county against defects in the construction work, more than one year had elapsed from the acceptance of the work when this action was brought. We think it was proper to permit the contractors to recover the amount remaining due under the contract, after deducting, by way of damages, the cost of repairing the minor defects in the building. See Cassinelli v. Stacy, 238 Ky. 827, 38 S.W.2d 980.
The judgment is affirmed.
DUNCAN, J., not sitting.