22 Gratt. 302 | Va. | 1872
This is an action-of assumpsit against the county of Carroll. It was instituted to recover the amount claimed to be due the plaintiff upon a contract for the erection of a jail. The defendant demurred to the declaration and to each count; but his demurrer was overruled. The question, therefore, first to be considered, is the sufficiency of the declaration. It is insisted the plaintiff should not only aver he had built a jail, but he ought to show how he had built it, the nature, qualities and dimensions of the building erected, that the court might determine whether it constituted such a jail as the law requires.
The second objection to the declaration is, that it states a contract for a county levy and the proceeds to be applied to plaintiff’s claim, but it is not averred that such levy was not made. It is true the declaration alleges that the County court agreed to provide for paying the plaintiff by two equal annual levies ; and that the sheriff was to be permitted to collect these levies, and make the payments by certain specified periods. But it would not follow, that the plaintiff had thereby released the county from its obligation to him, and consented to look solely to the sheriff" for the amount due him. On the contrary, it is expressly averred, that the defendant, in consideration that the plaintiff would build the jail according to the contract, promised to pay the several sums mentioned in the declaration. And it is further averred, that the defendant had wholly failed and refused to make such payments. The breach charged is co-extensive with the legal import of the contract; and that is always sufficient.
I think, however, the objection to the fourth count is well taken. It avers that the plaintiff" agreed to build a jail in accordance with certain specifications, and to complete it by a certain time. There is a sufficient aver
The question next to be considered arises upon defendant’s first bill of exceptions. It is sufficient to say that no substantial variance exists between the names of the commissioners set forth in the declaration and those contained in the order of the County court. It was, therefore, unnecessary to amend the declaration. The defendant could not have been prejudiced or surprised, either by the amendment or by the introduction of the order in evidence. It necessarily results from this view there was no valid reason for a postponement of the trial, or for remanding the case to the rules.
The fourth assignment of error is to the refusal of the court to admit the evidence set out in defendant’s second bill of exceptions. The defendant introduced a witness, and proposed to prove by him that the jail was not completed according to contract. To the introduction of this evidence the plaintiff objected, upon the ground that defendant was estopped to raise such question under
It is to be borne in mind that the defendant, in addition to the general issue, filed a special plea, averring that the plaintiff did not complete the jail by the 1st day of December 1861, the time stipulated; and also, averring that the.work was unskilfully and negligently performed, and with improper and defective materials. The plaintiff did not demur to this plea, nor did he reply the estoppel arising from the action of the County court, but took issue thereon, blow, if it appeared that the evidence offered by defendant had reference to the time of completing the building, we should hold it was rightly excluded. The defendant having received the jail without protest, will be thereby held to have waived his objections to the delay in its completion. But the evidence was not so restricted. It was also pertinent to that branch-of the plea which raised the question of the defective execution of the work, and was clearly admissible in support of that issue. Had the defendant pleaded the general issue only, and under that issue offered the evidence in question, it would have been competent for the plaintiff to rely upon the estoppel in evidence also. And this upon the well settled principle that where there is no opportunity of pleading an estoppel, it is to be held conclusive when offered in evidence. But here the defendant pleaded the matter of defense specially, and thus afforded the plaintiff the
I have thus far considered the case as if the order of the County court constituted an estoppel. Is it, however, to be so regarded. The plaintiff', by his form of action, treats the contract not as a matter of record, but as resting in parol. The declaration is in assumpsit, and upon the general issue it devolved upon him to prove the construction of the work in strict compliance with the terms of the contract. This he might do by the testimony of witnesses, or he might rely upon the admission contained in the order of the County court. This order furnished evidence of a very strong and persuasive character, but it was not conclusive upon the-question of such compliance.
The commissioners appointed to examine the building were not referees, nor was their report in the nature of an award between the . parties. They were mere agents of the court, -appointed for the purpose of ascertaining whether the building could be safely received, and the compensation paid the contractor. It is true the report was entered of record, but such entry did not render the inquiry or the acceptance a judicial determination of the fitness of the building. The justices were acting as a board of police for the county, in their ministerial, and not in their judicial capacity. In this case, as in a large majority of instances, the examination of the jail was made shortly after its completion, and before any defects in the material, or in the execution of the work, were discoverable. Under such circumstances, to hold that a county shall be compelled to pay the contract price for public buildings, no matter how defectively constructed, is to establish a rule that will -place the public interests at the mercy of fraudulent or incompetent and unskilful contractors. In Jaege v. Bossieux,
Another ground of error is the refusal of the court to give an instruction asked for by defendants set out in a a paper marked bill of exceptions Ho. 3. This paper is not signed by the judge presiding at the trial, but reference is made to it in a bill of exceptions which is signed, and the reason for such refusal stated. I think the court did not err in refusing to give this instruction ; nor was there any error to the prejudice of the defendant in the instruction actually given in lieu of that asked for by the defendant. The plaintiff had no contract with the sheriff, nor was he under any obligation to pursue him ; though he may have been authorized so to do under the statute. His contract was with the court, and to it he had the right to look for his compensation. It was the duty of the
Complaint is also made of the refusal of the court to sign a paper appearing iii the record as defendant’s bill of exceptions No. 4. There is nothing, however, in the record tending to show that such refusal was improper. In the absence of evidence establishing the contrary, an appellate court will always-presume the action of the court below was warranted by the facts before it. In this case presumption' is rendered conclusive by a statement of the presiding judge of what occurred at the trial, from which it does not appear that any such evidence was offered as is contained in this bill of exceptions. It is impossible to say that the court committed an error in'refusing to sign the paper.
"What remedy is afforded a party aggrieved by the refusal of a court to sign a proper bill of exceptions, has never been the subject of adjudication by this court. It is an important question, only to be settled upon deliberate consideration. ' As such decision is not called for in this case, we do not deem it proper or necessary to express any opinion upon the point. For the reasons stated, I am of opinion the judgment should be reversed, the verdict set aside and a new trial awarded, and upon such trial the cause to be proceeded in in accordance with the principles herein announced.
Judgment reversed.