Tuskaloosa County v. Logan

57 Ala. 296 | Ala. | 1876

MANNING, J.

The first special count in the complaint •of appellee, who was plaintiff in the Circuit Court, alleges in substance that an agreement was made with him by the defendant, Tuskaloosa County, for the building of a bridge in said county, in consideration of the sum of $1,500; that he entered upon the execution of it, and was ready and willing to perform his duty in the premises; but that the Court of County Commissioners of the county refused to recognize, and revoked the agreement and re-let the contract of building the bridge to another person. Wherefore he brings his suit, having first presented his claim to the Court of County Commissioners, who refused to allow it.

The second count alleges that the agreement was to build a bridge about 240 feet long, at $5.95-100 a foot — and its ■other averments are substantially the same as those in the first count.

1. The law does not require that the complaint should aver that the agreement was in writing, or by matter of record. The assignments of these matters, as grounds of demurrer, were, therefore, not well made. According to the rule's for pleading prescribed by the Revised Code, the complaint sufficiently set forth causes of action, and the demurrers were properly overruled.

2. The demurrer to the complaint — as amended by adding a common count for work and labor done — for misjoinder of ■causes of action, was also properly overruled. A joinder of such causes of action was permitted by the old law, and is •expressly authorized by section 2637 of the Revised Code.

3-4-5. The evidence of the records of the Court of County Commissioners was directly relevant to the matters in controversy. The objection “ that it was insufficient to charge the defendant,” was not a good reason for refusing to let it go, with other evidence, before the jury. Nor was there any error in disallowing the objection to the judge of probate’s communication to Whitson, Crump and McDuff, informing them that they had been appointed commissioners to locate the bridge to be constructed, and to let out the contract to build it, to the lowest bidder, at public outcry. The minutes of the Court of County Commissioners, in which the judge of probate presided, had been produced, and showed that the appointment thus communicated had been made by the court- and one of the commissioners proved that the communication itself, which was in fact their commission, was read to plaintiff when, or before, the agreement made in writing with him was entered into. It was a part of the transaction by which the parties were brought together, and under obligations to each other. It was proper also to allow, against defendant’s objection, the testimony that the bridge was in Tuskaloosa county.

6-7. The court gave to the jury nine several charges, or instructions, most, if not all of them, correct expositions of the law of the case. The only exception to these was one general to them all. According to several decisions of this court, such a general exception can not be sustained, unless the instructions were all erroneous. The charges asked on behalf of appellant, and which the judge refused to give to the jury, were seven in number. They were presented together, according to the bill of exceptions, and the court was requested to give them as instructions to the jury, and refused to do so; to which refusal a single entire exception was taken. Therefore, if any of them ought to have been refused, we can not reverse the judgment though some of them might properly have been given. Without scanning the others, the sixth of these instructions is as follows: “ That under the terms of the order, directing the letting, it was necessary that said letting should be approved by the Court of County Commissioners, before it was binding on the county.” We do not so understand the terms of that order. On the contrary, the authority to the commissioners is express, “to locate and let out the contract for building said bridge, at public outcry, to the lowest bidder, and report to this court.” Here is no intimation that a subsequent ratification by it was necessary to the completion of a binding contract. It was only required that the contract, when made, should be reported to the court, that it might have the proper-evidence on file of its transactions and obligations.

Let the judgment of the Circuit Court be affirmed.