#### Guthrie *vs*City of Louisville, &c.

Appeal from the Louisville Chancery Couet.

Chancery.

*Case*129.

The case stated.

The city of Low isville is liable to undertakers bycontiact, with her orders, to those who make, improvements m the .city, when through the neglect of those organs the lien guarantied, proves ineffectual.

*Parties. Louisville city. Limitation.*

*July*2.

Chief Justice Ewing

delivered the opinion of the Court.

This is a suit in chancery brought by Guthrie, to enforce a lien upon lot holders, for work and labor done in McAdamizing a street in Louisville, fronting their lots, under a written contract with the city, made by the Mayor and Council. The city pleaded the statute'of limitation of five years, as a bar to the complainant’s recourse against her. The complainant replied in substance, that the city, by written contract, under the seal of the corporation, made by her organs with the undertakers, bound herself to apportion the costs among the lot owners, and make *orders*for the payment thereof upon the same, and by mistake *of*their charter, the Mayor and Council, though they made the orders,, failed to make them so as to entitle the undertakers to enforce their lien against the lot holders, &c. To this replication the city demurs, and the demurrer w;as sustained and bill dismissed.

The laborer is worthy of his hire, and should be paid by the lot holders or the city, through whose organs the work has been done. The complainant derives his equitable lien upon the lots, if he has any, under the *contract*with .the city, *and through the agency*and instrumentality of the city’s regularly constituted organs, and the city and the citizens thereof, receive the benefit of the improvements, and are interested in enforcing the lien as the means of escaping from responsibility for the work done. It would seem, therefore, that the city is a proper if not a necessary party in a proceeding to enforce the lien. Being made a party, and the complainant failing ultimately to enforce his lien, by reason of some mistake, neglect or omission to make the necessary and effectual orders to entitle the complainant to the promised lien, it would seem contrary to all equitable rules, to turn thecomplain*576ant out of Court, to seek his remedy by a new action at law. It was the duty of the city, being made a party, to produce and show the necessary orders to sustain the lien which she has guarantied, and upon her failure to do so, she should be made liable for the price of the labor performed under her contract. And a Court of Equity, which delights to' do final and complete justice, will go on to afford it, first by an enforcement of the lien if it can be done, and secondly, by the assessment of damages against the city, if the right to do so fails, through the neglect or omission of her organs.-

*Guthrie*for appellant: *Wolfe and Butler*for appeljees.

The limitation of five years is no bar to the complainant’s remedy against the city, as the contract outof which her liability springs, is in writing, under her corporate seal.

The decree of the Chancellor is reversed, and cause remanded that further proceedings may be had and decree rendered, as indicated.