Buchanan Cnty. v. Kirtley

• Decision Date: 31 August 1868
• Parties: BUCHANAN COUNTY, Appellant, v. E. B. KIRTLEY et al., Respondents.
• Court: Missouri Supreme Court

42 Mo. 534

BUCHANAN COUNTY, Appellant,

v.E. B. KIRTLEY et al., Respondents.

Supreme Court of Missouri.

August Term, 1868.

Appeal from Buchanan Circuit Court.

Ensworth & Hill, for appellant.

I. The allegation in the petition of notice having been given to the defendants of the bridge's failing is surplusage. No notice was necessary to defendants. (10 Mo. 667-8; Statutes 1840, p. 107, §§ 13, 14; R. C. 1855, pp. 326-7, §§ 16, 17; Gen. Stat. 1865, §§ 16, 17.)

Woodson, Vories & Vories, for respondents.

I. The first question presented by the record is whether the court erred in striking from the deposition of P. K. O'Donnell the words, “I notified the defendants of the condition of the bridge before the repairs were made.” The petition is based upon the sixteenth and seventeenth sections of an act “to provide for building bridges.” (R. C. 1855, vol. 1, pp. 326-7.) The court did not err in striking out that part of said deposition. (Gathwright v. Callaway County et al., 10 Mo. 663-8.)

II. The suit is not founded upon the bond, but upon the statutory provisions giving a remedy for failing to repair in accordance with said sixteenth and seventeenth sections aforesaid. The petition avers notice by the commissioner of the county; a failure to repair after such reasonable notice; the repairing of said bridge by said plaintiff; the cost of same; praying for judgment for the amount so expended for said repairs. The county abandoned her remedy on the bond, and sued for money expended in repairing said bridge, and, as such action was given by the statute, plaintiff is compelled to show that she has pursued its terms in order to maintain her action.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought in the Circuit Court by the plaintiff against the defendants, upon a bond executed by one Hugh Irwin in his lifetime, obligating himself to build a bridge in the county of Buchanan, according to certain plans and specifications, and providing that the said bridge should stand and remain for four years. The defendants were sureties on the bond. By contract the bridge was to be completed on or before the 10th day of June, 1858. The breach assigned is, that soon after the said bridge was completed the same began to give way, and was, by the spring of 1860, so far gone that the same was entirely unfit and unsafe--of all which the defendants had due and legal and timely notice through the commissioner of plaintiff duly appointed. The petition then states that, after waiting a reasonable length of time, plaintiff proceeded to make the necessary repairs, and that defendants were liable for the same under their bond.

The answer contains a denial of every material averment set forth in the petition, except the execution of the bond, which is admitted. Upon the trial the plaintiff offered to read in evidence the deposition of O'Donnell, who acted as road commissioner for the county in letting out the contract for the construction of the bridge. The following portion of the deposition was objected to--“I notified the defendants of the condition of the bridge before the repairs were made”--because the law requires a written notice to be given to the defendant specifying what repairs were required to be made, and that the deposition did not disclose that such written notice was...