Meriwether v. Lowndes County, 89 Ala. 362

89 Ala. 362 | Ala. | 1889

SOMERVILLE, L

The bond of the defendant’s intestate, which is here sued on, for the consideration specified, bound him by covenant, not only to build the bridge contracted for by the county of Lowndes, but also for five years to keep the structure in repair. The express condition of the undertaking is, that said bridge shall be “kept in good repair” by the obligor, and shall “remain safe continuously from the time of its acceptance [ by the county], for the period of five years, for the passage of travellers and other persons, as well as for all purposes for which said bridge may be.properly and lawfully used.” , .

It is not denied, on the one hand, that the bridge in question was constructed in a skillful and workmanlike manner; nor, on the other, that the county had the authority to contract generally for the construction of bridges, free or toll, and to take a bond to keep them in good repair for a stipulated period. — Code, 1886, §§ 1442, 1456-57. The breach of the bond assigned is, that the bridge was washed away by a flood, within the period it was stipulated to stand, and thereby became impassable to the public; and that the defendant’s intestate refused to rebuild and repair tbe bridge, although notified to do so by the Board of Revenue of the county, which was invested with-the jurisdiction and powers conferred by the statute on courts of County Commissioners in reference to the subject of bridges.

1. The main defense urged to the suit is, that the bond imposed no duty on the obligor to rebuild the bridge, but only to keep it in repair so long as it stood; and that the structure was destroyed from no defect in the work, but by an extraordinary and unprecedented flood, which was an act of God, not covered by the covenants of the bond. This defense was clearly not good. There is a long line of cases, both in England and this country, which settle the proposition, that an unconditional express covenant to repair, or keep in repair, is equivalent to a covenant to rebuild, “and binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger”; and that, while an act of God will excuse the non-performance of a duty created by law, it will not excuse a duty created by contract. Abby v. Billups (35 Miss. 618), 72 Amer. Dec. 144, and note, p. 148; Ross v. Overton (3 Cal. 309), 2 Amer. Dec. 552; Polack v. Pioche, 95 Amer. Dec. 115; note, 121-122; Hoy v. Holt (91 Penn. St. 88), 36 Amer. Rep. 659; Miller v. Morris, 40 Amer. Rep. 814; School District v. Dauchy, 68 Amer. Dec. 371; Beach v. Crain, 49 Ib. 369; note, 374; Van Worner v. Crane, 47 Amer. Rep. 582; Warren v. Wagner, 75 Ala. 188; 51 Amer. Rep. 446; Nave v. Berry, 22 Ala. 382. The courts have no authority to relieve contracting parties from the hardships often occasioned by such contracts, as it is within the power of obligors to provide in advance by excepting liability for casualties of this nature from the terms of their contracts, if they so elect. The contract, moreover, shows that the duty - of keeping “in good repair” is coupled with the covenant that the bridge shall “remain safe" for the period stipulated. And the'statute clearly contemplates that, when a bridge, constructed under such a contract, is “washed away, or so damaged [in any manner] as to become unsafe to the public,” within the period covered by the bond, such accident shall be such a breach of the bond as to constitute a ground of action. Code, 1886, § 1457. The second plea, interposing this defense, was bad, and the court did not err in sustaining the demurrer to it.

2. Where a bridge is thus erected by a contract with the county, which contains a guaranty, by bond* or otherwise, to stand for a stipulated period, the statute provides, if the structure is “washed away, or so damaged as to become unsafe to the public,” that the Commissioners Court “shall, upon the fact being made known to them by any freeholder of the county, notify the contractor to rebuild such bridge, if washed away, or repair it if damaged, and, in case of his refusal or neglect to do so in a reasonable time (to be judged by the court), shall order suit to be brought .in the name of the county on such bond. — Code, 1886, § 1457. It is contended in behalf of the appellant, that the Commissioners Court had no authority to notify the contractor to rebuild, or to bring the present suit, until the fact of the damage to the bridge was made known to the court by a freeholder. The statute is not susceptible of this construction. The giving of such information by a freeholder was not intended.as a condition precedent to the action of the court in giving notice to rebuild, or its authority to order suit brought; but to make a duty, otherwise discretionary, mandatory on the court. I he authority to sue, and to take all preliminary steps necessary thereto, is an implied incident of the contract, and of the general statutory powers conferred on counties as bodies corporate, in any court of record. — Code, 1886, §§ 886, 1457; James v. Conecuh County, 79 Ala. 304.

3. It is further contended, that there was no consideration for the execution of the bond, so far as concerned the construction of the span of the bridge, because the county furnished all the material for this particular part of the structure, and paid the obligor the additional sum of $25.00 for superintending its erection. This fact does not, in our judgment, change the aspect of the case. The bond itself recites that the consideration of $250.00, paid by the county to the obligor, was both for the work of building the bridge and for the execution of the bond, which necessarily includes the assumption of its undertakings. One of these undertakings is the obligation to keep the entire bridge, and not a part of it, in good repair for the period stipulated. The authority of the Commissioners Court was to make a contract for building a bridge, and to take a bond guaranteeing the sufficiency and permanency. It was immaterial whether the defendant’s intestate furnished all or a .part of the materials, or whether the county furnished them. It was equally unimportant whether, as contractor, he built a part, and superintended the building of the other part, or whether he built the entire structure. He has, for a valuable consideration, contracted to guarantee the whole, and must abide by the terms of his agreement. That the Commissioners Court had the authority to enter into such an agreement as that imported by the bond, we entertain no doubt.

It follows from the foregoing views that the rulings of the Circuit Court were all free from error, including the giving of the general affirmative charge requested by the plaintiff.

Affirmed.