Although not present when this case was originally heard and considered, I have sat in its reconsideration and find myself unable to agree with the result arrived at by a majority of my brethren. Abstractly considered, the principles of law stated in the majority opinion meet with my approval, but as stated by one of Dickens' characters: "The point is in the application." The majority of my brethren have the idea that the petition as amended simply presents a case wherein it is sought by mandamus to compel a state agency to carry out a contract theretofore entered into by it. As I view the petition, as amended, no such state of case is presented, but it is a palpable and obvious effort on the part of the plaintiff to recover a money judgment against the defendant for breach of a contract theretofore entered into by it. If my view of the case is correct, I take it that even under the principles laid down in the majority opinion, the special demurrer was properly sustained as in such state of case, the suit against the state agency is in reality a suit against the state when it has not given its permission to be sued. What then is the case as presented by the record? In my judgment the majority opinion fails to discern the effect of the amended petition filed in this record. While it is true a pleading and its amendments are ordinarily to be read as a whole, yet it is fundamental that where the amendment sets up matter at variance with the original pleading, the amendment controls. So in order to get at what the original petition and the amendment here involved disclose, I must at the risk of some repetition set them out again. The original petition filed herein on November 24, 1924, in substance alleged that the state highway commission entered into a written contract with the city of Frankfort on July 23, 1923, by the terms of which the state highway commission agreed to take over certain streets included in what was then known as state project No. 17a but which is now known as U.S. 60, where it passes through the corporate limits of the city of Frankfort. The contract provided that the state highway commission should make all the surveys, plans and specifications for improving this highway and that the commission should have actual charge andsupervision of the construction thereof. The agreement further provided that the highway commission should advertise for bids and award the *Page 262 contract subject to the approval of the board of council of the city of Frankfort, and that it and the city of Frankfort should pay for the road in equal proportions, the city of Frankfort providing for its part of the cost by assessing the same against the abutting property owners. The petition averred that pursuant to the contract the state highway commission did prepare plans and specifications and advertised for bids and bids were received, and that the Irvine Construction Company was the lowest bidder at a price of $215,052.15; that thereafter and on May 15, 1924, the highway commission undertook to cancel the contract of July 23, 1923. By the prayer of the original petition, the city of Frankfort askedthat the highway commission be required to carry out the termsof this contract, for a declaration of rights and for all proper relief. After this original petition was filed the case pursued a leisurely course until January 17, 1929, a little over four years from the time the suit was originally filed, when an amended petition was filed. That amended petition reads as follows:
"Par. I. Comes the plaintiff and begs leave of Court to amend its petition herein and states, that since the filing of its original petition herein that under proper ordinances and resolutions, it has caused the street or roadway to be constructed of sheet and rock asphalt at the expense of the City and the abutting property owners, from the Eastern limits on the Versailles Pike, through the City, to the Western limits on the Louisville Pike; and that this is the same street or roadway contemplated being built by the City and the State Highway Commission under the contract filed with the plaintiff's petition.
"Plaintiff states that owing to the condition of said street or roadway getting into such disrepair that it was necessary to keep same in a reasonably safe condition for public travel to improve the said street as indicated. That this construction has been made since the filing of the original petition herein and since the State Highway Commission refused to carry out the contract entered into with the City, and the entire expense of the construction of said street or roadway has been paid by the City and the abutting property owners at great cost, and that the *Page 263 names of the abutting property owners and the amounts paid by each are herein set out in an exhibit herein filed, marked 'B,' it being a certified copy of the City Clerk, showing the names and the amounts paid by each.
"The plaintiff states that the total construction of the street or roadway amounted to the sum of $103,072.46.
"Par. II. The plaintiff states that the cost of construction of this street or roadway under the contract of the Irvine Construction Company would have been $215,052.15, according to the bids set out in plaintiff's petition, and if the State Highway Commission had carried out this contract with the plaintiff, the total cost of this construction would have been that amount, and that one-half would have been paid by the State Highway Commission and one-half by the plaintiff and the abutting property owners. The amount of one-half would have been $107,526.07.
"Par. III. The plaintiff states that by reason of the breach of the contract by the Highway Commission, the plaintiff and the abutting property owners have had to pay $103,072.46 for the construction of these streets, and if the contract had been carried out, each would have had to pay one-half of the construction of these streets, which would have been $51,536.23.
"Plaintiff states that aside from the difference in the cost of construction, the State Highway Commission agreed to take over or maintain said highway, after it had been constructed, as a part of the Highway System, and thereby eliminate the plaintiff or the abutting property owners from having to keep and maintain said street from further expense to them.
"Par. IV. The plaintiff states that it is a municipal corporation of the third class and under its charter has a right to sue and be sued, to contract and be contracted with. That the contract made by the City in its capacity is made for and on behalf of the citizens of the City, that the contract was made with the Highway Commission in its corporate name for and on behalf of the citizens of the City. That the citizens interested mostly are the *Page 264 abutting property owners, that all the citizens are interested in, so far as the City is obligated to pay for the building of intersections, but that the abutting property owners are interested in the amount that each had to pay according to its front footage abutting on said street or highway.
"The plaintiff states that it is not only suing in its own corporate capacity for all the citizens, but that it is suing, also, for the benefit of all the abutting property owners fronting along this street, as the amount of money recovered herein should be prorated and divided and paid over to them, as it is shown that each is entitled to according to what they have paid and that this plaintiff and abutting property owners are interested in this matter only so far as their prorata interest may appear. And that this plaintiff, who contracted for them, is now suing for them in that capacity and will see that the money is distributed accordingly.
"Wherefore, plaintiff prays as in its original petition and for the sum of $51,536.23, one-half of the cost of the construction with interest until paid, that the State Highway Commission take over and maintain the streets in the City from the Eastern to the Western limits, for its costs herein expended and all proper relief." (Italics mine.)
Now what does this amended petition set up? Do its allegations further strengthen or support the cause of action set up in the original petition, namely, a mandamus to compel the highway commission to carry out a contract it has made, or do they show that the highway commission breached that contract, that the city of Frankfort was thereby compelled to do the work itself, under its plans, its specifications, its surveys, its judgment as to the type of surface, its judgment as to the type of foundation, and that it now seeks a money judgment for half the cost of performing its exclusive undertaking by way of damages for the breach of that original contract? I am utterly unable to see how any construction other than this latter alternative can be given to this amendment. My brethren of the majority hang their interpretation on the tenuous support of this allegation in the amended petition: "This is the same street or roadway contemplated being built by the City and State *Page 265 Highway Commission under the contract filed with the plaintiff's petition;" and argue that the streets as built by the city complied in all respects with the plans, specifications and survey originally agreed upon, and, therefore, the petition as amended simply seeks to make the highway commission comply with the uncompleted portion of their original contract, that is, the payment. Waiving the elementary rule that a pleading is to be construed most strongly against the pleader, and passing the fact that even though the streets had been constructed according to the plans and specifications of the highway commission, we are yet met with the insurmountable obstacle that the building of the streets by the city was not a building on a contract let by the highway commission, wherein its judgment as to who was the lowest and best bidder was to be had, if the original contract was to be carried out, and was not a building under the supervision of the highway commission, wherein its judgment as to whether the street was being built according to contract was to be had if the original contract was to be carried out, I am of the opinion that a more common sense interpretation of the allegation in the amended petition on which the majority rely is simply that the city constructed the same series of streets as were agreed upon in the original contract. I suppose the person who would probably know more what the pleading was meant to say than anybody else would be counsel for the city, and I take this from his brief:
"The City, necessarily having to abandon the arrangements made under the ordinances, passed for the purpose of the Highway Commission constructing said highway under its superintendency, to comply with the statutory regulations, had to pass new ordinances and taking other necessary and proper steps to bind the property owners, did, after proper bids and the letting of the contracts have this highway properly and permanently constructed with street paving materials, for all of which the abutting property owners and the City paid." (Italics mine).
In view of this excerpt from the appellant's brief, are we not compelled to admit that by the amended petition the city is not asking that the original contract be carried out, but that, because of contractual rights it has *Page 266 by virtue of that original contract, it be given a money judgment because of the breach of that contract? The city's position is no different from the usual one of a purchaser or seller under a breached contract of sale who has been compelled to go into the open market and buy or sell as the case may be, and then seeks the difference between the contract price and the market price by way of damages. Perhaps a more apt illustration would be where a party to a contract has the right to bring suit for specific performance, but later, abandoning that remedy, asks damages for the breach of the contract.
But it may be argued that at least to the extent of its obligation to "maintain" the streets, the highway commission may be mandamused to carry out its original obligation. The trouble about that contention is that the highway commission agreed to maintain streets that it built, under its plans and specifications and supervision. There is no allegation that the streets the city built were such streets as the highway commission had contracted to maintain, and surely we cannot compel the highway commission to do something it had not agreed to do. The maintenance of a street will vary according to the quality and efficiency of its original construction. The city must allege facts to sustain their cause of action and surely, in the absence of such allegation, it cannot compel the highway commission to maintain streets which the city built when the highway commission only agreed to maintain streets built underits plans, its specifications, and its supervision.
Being firmly convinced that the petition as amended does not present a case of a "mandamus to compel a state agency to carry out a contract it theretofore entered into," but just a simple, plain, ordinary case of a "prayer for damages for breach of a contract," in which state of case, as the majority opinion concedes, this suit cannot be maintained because of the state not having given its permission to be sued, I must dissent from the majority opinion. I am of the opinion that the judgment of the lower court should be affirmed.
I am authorized to state that Chief Justice THOMAS and Judge RFES concur in this dissent. *Page 267