27 W. Va. 496 | W. Va. | 1886
This was an action of assumpsit brought in the circuit court of Wayne county by William F. Chapman against the county court of Wayne coimty to recover the contract price for the making of a public road.
Besides the common counts the declaration contained the following special count:
"And for this, that heretofore, to-wit, on August 10, 1880, the said defendant, by its commissioner, G. F. Ratliff, entered into a contract with this plaintiff for the building of a certain piece of road in said county by the plaintiff over what is known as the Blankinship Hill, for which work to be done according to the plans and specifications made known at the time of letting said contract to plaintiff by its said commissioner, said defendant agreed and promised said plaintiff: to pay him the sum of $600.00 for said work. The plaintiff proceeded, continued and completed the building of said road according to plans and specifications aforesaid; that at the time of the completion of said road, the plaintiff notified the defendant that the wrork under such contract "was completed, and asked that the same be examined and reported to the*498 defendants; that the defendants, nor its commissioner for them, examined said work nor made a report upon the same when requested to do so by this plaintifi; that afterwards the defendant appointed a new commissioner, who, after frequent solicitations by this plaintifi, made an examination of said work, and upon his said report, the defendants paid to this plaintifi upon said contract the-sum of $200.00, and refused to discharge the balance of their said debt to this plaintifi and ordered that certain changes be made in said road; said changes were not a part nor parcel of the contract with said defendants; that this plaintiff did make all and every of such changes ordered to be made by said defendant at a great and additional outlay of money and time; that when such additional work was completed, as ordered by defendant, this plaintifi requested said defendants to receive said work and pay him therefor. Said defendants did, on November 10, 1881, pay to said plaintifi upon said contract the further sum of $200.00, but failed and refused to pay the balance, to-wit, the sum of $200.00 due him upon said contract; that this plaintifi has at divers times sought and requested the payment of said debt due from defendant on said contract; that the defendant refuses and wholly fails to pay the same ; and in consideration thereof, then and there promised to pay to him (to said plaintifi) the several moneys aforesaid upon demand, yet said defendant has never paid any of said moneys'but wholly neglect so to do, to the damage of the plaintifi in the sum of $10,000.00. And therefore he sues,” &c.
The defendant entered a demurrer to the declaration and to each count thereof, which was overruled, and then pleaded non-assumpsit and payment, with specification of sets-ofi, on which issues were joined which were afterwards tried by a jury, who found a verdict in favor of the plaintifi for $220.00 damages, which the defendant moved to set aside. This motion the court also overruled, and entered judgment in favor of the plaintifi for the amount of the verdict and the costs.
The cause has been brought to this Court upon a writ of error, by the defendant in the court below.
The only error assingned is that the circuit court improperly overruled the demurrer to the plaintifts declara
But the case under consideration must bo determined by the provisions of our own statutes. The county court of any county is declared to be a “Corporation by the name of ‘The County Court of-County,’ by which name it may sue and be sued, plead and be impleaded, contract and be contracted with.” Sec. 1, ch. 5, Acts of 1881. But in order that the people may not be put to unnecessary costs, by persons having rightful claims upon the county, which it is liable for, and may be compelled to pay, the fortieth section of that chapter provides, that persons having claims and demands against the county' shall file with the clerk of the county court an itemized statement of their accounts, and it is made the duty of such clerk to present such account to such court at its first meeting thereafter, which shall allow the whole, or such part thereof as they may -deem just, or may disallow the whole; and in the forty-first section of the same chapter it is further provided that: “No suits shall be brought against a county court for any demand for a specified. sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court, and has been disallowed by them, in whole or in part. But if the court neglect or refuse to act on such demand 'by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk pursuant to the preceding section for presentation, it shall be deemed to have been presented and disallowed.”
Two methods are here prescribed whereby a party having a just demand against the county may present it to the county court. First, he may file an itemized account or statement of his claim with the clerk of the court, and quietly await the result. In that case it is made the duty of the clerk to present such account or statement to the county court at its first meeting thereafter, and it is the duty of the com’tto allow so much thereof as they may deem just, or to
AFFIRMED.