112 Ky. 121 | Ky. Ct. App. | 1901
Lead Opinion
Opinion op the coubt by
Afpibming.
Tbe county roads in Henderson county are worked by-taxation, under sections 4313-4325, Kentucky Statutes. By section 4313 a county supervisor of roads is to be appointed for a term of two years. By section 4314 be is to execute a bond, with sureties approved by tbe court, in double tbe amount of tbe bridge and road fund. By section 4315, after 20 days’ notice in writing at each voting place in tbe county, he is empowered to let out to the lowest apd best bidder, who shall give bond with surety, the-working" and keeping in- order of the county roads, the work to be done as- prescribed in the bonds; and by the., consent' of the county judge may designate certain roads and make contracts privately for the working of these. In March, 1898, the supervisor let out to appellee, J. N.. Rowlett, eleven sections of the county roads at the price of $366.05. Two days later he let to Rowlett five other
As -the bond was in double the sum specified, it only bound the obligors on its face for the -payment of twice $479.80, or $959.60. The rule is settled that the recovery on such a covenant must be limited to the amount of the bond. Woods v. Com., 8 B. Mon., 112; Hughes’ Adm’r v. Wickliffe, 11 B. Mon., 202; Carter v. Thorn, 18 B. Mon., 619; 4 Am. & Eng. Eney. Law (2d Ed.), 701. It is insisted for appellants that this rule is changed by section 3752, Kentucky Statutes, which is part of chapter 93, tit. “Office and Officers.” The section is so connected with 3751 and 3753 that it can not be properly understood unless read in •connection with them. The three sections, so far as material, are as follows:
“The obligation required-by law for the discharge of performance of any public or fiducial office, trust or employ*125 ment, shall he a covenant to the Commonwealth of Kentucky from the person and his sureties that the person shall faithfully discharge the duties of the office, trust or employment, but a bond or obligation taken in any other form shall be binding on the parties thereto according to its terms.” Section 3751.
"Actions may be brought from time to time on any such covenant or bond in the name of the Commonwealth, for her benefit, or for that of any county, corporation or person injured by a breach of the covenant or condition, at the proper costs of the party suing, against the parties jointly or severally, together with the personal representatives, heirs and devisees or distributees of such of them as may be dead; and the recovery against principal and surety shall not be limited by the amount of the penalty named in such bond.” Section 3752,
“No officer from whom a covenant is required shall enter upon the duties of his office until the same is given.” Section 3753.
The covenant or bond referred to in section 3752 is evidently the obligation required by law for the discharge or performance of any public or fiducial office, trust, or employment provided for in section 3751, and which an officer from whom a covenant is required must execute, under section 3753, before entering upon the duties of his office. The words “any public or fiducial office, trust, or employment,” do not, by any fair construction, include those who make contracts with a county for a valuable consideration. If a man should undertake with the county by contract to furnish fuel for heating’ the court house,, or timber to repair a bridge, or rock to cover a highway, it can'not be said that he would exercise any public or fiducial office, trust, or employment.' The roads, under the statute, might
Judgment affirmed.
Judge DuRelle dissents from the opinion on the second question decided, but concurs in the first. Judge Guffy dissents on both.
Dissenting Opinion
Dissenting opinion by
The appellant instituted this action in his own name, and in the name of the Commonwealth,, for his use and benefit, against the appellees. A demurrer was sustained to the petition, after which the appellant filed an amended petition, and defendant’s demurrer thereto was overruled. The petition as amended substantially avers that J. N. Rowlett became an accepted bidder for the repairing and keeping in order certain portions of public roads and certain bridges and culverts of Henderson county, and, for the faithful performace of his contract with J. H. Tillotson, James Haynes, G. L. Reid, and W. A. Barnett, executed bond to the Commonwealth of Kentucky for the faithful performance of his duty as to the repairing and keeping in' proper condition for a specified time the roads and bridges as ijamed in said bond; precinct No. 76 of the roads of Henderson county being one of the road divisions or precincts included within said contract and bond. It is further alleged that defendants had broken their contract, in this: that said Rowlett failed to repair, work, or put said road, or culverts and bridges under 20 feet on same, in good condition for the general travel or hauling from the date of his said contract, Marsh 8, 1898, to the date of the injury hereinafter complained of by plaintiffs, to-wit, June 16, 1898, and failed to repair and work said road
The substance of the defense is that defendants signed a bond on the 8th of March, 1898) very like the one described in the petition, but it is no† the same contract or bond sued on. That on the 8th of March, 1898, one Samuel Crawley .let out to Rowlett to work in the roads in sec
The reply may be considered as a traverse of the execu
At the conclusion of plaintiffs’ evidence, the defendants moved the court for peremptory instructions, which mo-, tion was sustained, and the court gave to the jury the following . instruction: “The plaintiffs having failed to establish their rights to recover, you will find for the defendants.” The jury thereupon returned the following verdict: “'We, the jury, find for the defendants. [Signed] S. E. Hicks, Foreman.” The court thereupon dismissed plaintiffs’ petition, to all of which plaintiffs excepted, and prayed an appeal to the court of appeals, which was granted. Plaintiffs’ motion for a new.trial having been overruled, they prosecute this appeal.
the appellee insists that the judgment should be affirmed for three reasons: First, upon the idea that the bond is not part of the record,'and hence not before the court; second, if the bond be a part of the record, yet the demurrer should have been sustained to the petition as amended; third, because the bond sought to be sued on was merely an escrow.
As to the first proposition, we think the bond constitutes a part of the petition, and is part of the record, and hence is before this court.
The third contention, that the bond wa's an escrow, is not sustained by the testimony or the law in this aaise. It nowhere appears that the defendant ever demanded a return of the original bond after the acceptance of the second, but, on the contrary, it is pretty evident it would have been returned if demanded. Moreover, the return of the old bond to Rowlett was of no value to him. It would not have relieved Mm from any liability, nor dlid its retention, if it'was retained, increase his liability, because the new bond contained all of the covenants and requirements contained in the old bond, with the additional covenants which were agreed to by all of the appellees, as is clearly shown.
I think that the majority opinion nullifies a plain provision of the statute.