Tommy WELLS et al., d/b/a Wells & Wells Construction Company, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee, 384 S.W.2d 308

PALMORE, Judge. This is a suit against the Commonwealth for damages resulting from an alleged breach of contract. The appeal was briefed and submitted prior to Foley Construction Company v. Ward, Ky., 375 S.W. 2d 392 (1963), in which it was held that the doctrine of sovereign immunity prevents recovery in contract actions against the state. At the close of plaintiffs’ evidence the trial court dismissed the claim on the basis of the terms of the contract and the proof relevant to its alleged breach. The defense of sovereign immunity was not specially pleaded or relied upon.

However, it is a constitutional protection that can be waived only by the General Assembly and applies regardless of any formal plea. Commonwealth, Dept. of Highways, v. Davidson, Ky., 383 S.W.2d 346 (decided October 16, 1964). In view of the Foley decision a review of the instant appeal on the merits would be fruitless. The judgment is affirmed.