
    No. 631
    KELLOG v. SEASONGOOD et
    No. 19859.
    Supreme Court
    On motion to certify.
    Dock. June 2, 1926.
    797. MUNICIPAL CORPORATION — May a road contractor obtain an injunction against a city council from revoking and breaching a contract for the repair of a road after the same has been let?
    Attorneys — H. R. Weber, Cincinnati, for Pltf.; J. D. Ellis, E. F. Alexander and B. H. Long, Cincinnati, for Defts.
   Edwin E. Kellog, a tax payer brought this action originally in the Hamilton Common Pleas against one Seasongood and the city counsel of Cincinnati seeking an injunction against the city counsel from revoking and breaching a contract let for the improvement of a street.

It appears that the electors of Cincinnati upon a referendum voted to issue bonds in the sum of $413,000, the proceeds of which was to be used in paying for the improvement and widening of a certain street in Cincinnati. The contract was thereupon let to one Bolán, said contract providing that the street was to be widened to 63 feet. All the bonds were sold and the contract price was $320,000. The contractor began work and had graded said street at a cost of $46,000 when the city manager served notice on Bolán to cease activity. The city manager disapproved the approvement and consequently the city counsel by resolution changed the grade from 63 feet to 65 feet and thereupon the contractor was directed to proceed with the improvement in accordance therewith.

Bolán refused to continue the work and shortly thereafter the Hamilton Common Pleas enjoined the city manager from changing the contract whereby the grading would be eliminated. The city counsel upon being informed of the injunction indicated that the contract would be breached.

The Common Pleas Court refused to grant the injunction sought by Kellog and the Appeals dismissed the action by sustaining a demurrer to the petition.

Kellog in the Supreme Court contends:

1. That as a matter of law the contract must be adhered to because the people had so voted.

2. That the money expended will be wasted.

3. That the contractor will be entitled to damages for the breach.

4. That by reason of property owners having raised buildings to conform to a 63 foot grade that they will be subjected to damage if said grade is not established.  