Mitchell v. Hancock County

45 So. 571 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

The condition of this obligation was as follows: “ Said J. W. Mitchell by these presents insures and guarantees to keep said bridge in repair for a term of five years, . . . and if said bridge shall be removed from any cause, fire excepted, within the time of five years, he shall rebuild the same without additional cost to the county of Hancock.” It is obvious that the obligor’s attention was directed to exceptions which should be made, and that the only thing excepted against was loss by fire. Whilst making his exceptions, if he had intended to except against the act of God, he should have done so. A case on all fours with this, except that this is a stronger case for liability than that, is the case of Meriwether v. Lowndes County, 89 Ala., 362; 7 South., 198. That case, like this, was a bridge case; the bridge having been destroyed, as here, by an extraordinary flood: The only covenant of that bond was to “ keep the bridge in good repair and that it should remain safe for five years.” The court said: “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 covenanter 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 Am. Dec., 143, and note at page 148; Ross v. Overton, 3 Call (Va.), 309; 2 Am. Dec., 552; Polack v. Pioche, 35 Cal., 416; 95 Am. Dec. 115, note, 121, 122; Hoy v. Holt, 91 Pa., 88; 36 Am. Rep., 659; Miller v. Morris, 55 Tex., 412; 40 Am. Rep., 814; School Dist. v. Dauchy, 25 Conn., 530; 68 Am. Dec., 371; Beach v. Crain, 2 N. Y., 86; 49 Am. Dec., 369, note 374; Van Wormer v. Crane, 51 Mich., 363; 16 N. W., 686; 47 Am. Rep., 582; Warren v. Wagner, 75 Ala., 188; 51 Am. 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 such 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 1906, § 4457. The second plea interposing this defense was bad, and the court did not err in sustaining, the demurrer to it.”

We think this states the doctrine correctly, and the judgment is affirmed.