Despard v. County oe Pleasants.

• Decision Date: 26 June 1888
• Citation: 23 W.Va. 318
• Court: West Virginia Supreme Court
• Parties: Despard v. County oe Pleasants.

23 W.Va. 318

Despard

v.County oe Pleasants.

Supreme Court of Appeals of West Virginia.

Submitted June 26, 1888—Decided December 20, 1888.

1. The county court, having made a contract with the plaintiff for

certain repairs to the public buildings of the county, by an agreement in writing signed by it and the plaintiff, accepted said repairs and directed said agreement to be entered on the order-book of the court; after it had been so entered but before the minutes of the court had been signed the court by interlin ing the agreement on the order-book made a material change therein wdthout the knowledge of the plaintiff. Held:

I. The said court in making said agreement did not act judi-

cially but simply as a board of police for the county in its ministerial capacity and its obligations as such board and its powers as a county court in its judicial capacity were as separate and distinct as if the two bodies had been composed of different instead of the same members.

II. It had no power as a court to alter the agreement entered

into by it as such board, and the interlineation made therein on its order-book was a nullity and it was proper to show that fact by parol evidence.

2. The acceptance of said repairs by the county court was conclusive

as to the character and completion of the repairs unless the county should show that the same had been obtained by the imposi tion or fraud of the plaintiff or made by the mistake of the county court. No offer having been made to show such imposi tion, fraud or mistake, it was not error to reject parol evidence offered by the county to show that the repairs had not been made and completed according to the contract between the plaintiff and the county, (p. 821.)

The facts of the case appear in the opinion of the Court.

John A. Hutchinson for plaintiff in error.

Leonard ft' Caldwell for defendant in error.

Snyder, Judge:

Action of assumpsit by C. S. Despard against the county of Pleasants. The declaration in addition: o the common counts contains a count "for material furtished and work and labor performed upon the court-house, clerk's offices and jail of Pleasants county." Issue was joined on the plea of non-assumpsit, a trial had by jury and a verdict found for the plaintiff for one thousand and seven dollars and seventy cents, upon which the court, on October 14, 1881, rendered judgment. During the trial the defendant took several bills of exceptions and tor the correction of the errors alleged therein it obtained a writ of error to this Court.

The county court of Pleasants county by an order of record, made May 12, 1879, awarded to the plaintiff the contract for repairing the court-house ami jail of said county at the price of two thousand one hundred and eighty dollars and seventy cents to be paid as follows: "One third when the material is on the ground, one third when the repairs are one half completed and the residue when said repairs are fully com pleted and accepted, by the court.''

The said repairs were to be made according to written specifications. Before they were accepted by the court the plaintiff did certain extra work not provided for in said speci fications, and after having completed, as he claimed, the re pairs according to his contract and done said extra work, the plaintiff', on May 12, 1880, presented to said court then in session Iris account showing a balance of one thousand three hundred and seventy dollars still due him from the county and demanded the payment thereof, and stated that unless the court accepted said work and paid him he would bring suit against the county on the same. The court then offered to arbitrate the matter in dispute between it and the; plaintiff, which matter was the charges lor extra work only, and the plaintiff agreed to said offer on condition that the court would accept the work done by him; to this the court assented and then and there directed counsel to prepare a paper setting out said agreement, which was done, and there upon, in the presence of the court and by its direction, said paper, which was to be entered as an order of the court, was signed by the court by its president and also by the plaintiff. On that day after the adjournment of the court the clerk gave the plaintiff a copy of said paper and transcribed the same on the order-book of the court. The next morning when the clerk read the minutes to the court it ordered him to correct the entry of said paper by inserting the word "not before the word "accepted" which the clerk did by inter lining on the order-book said word "not" as before stated, and the minutes were then signed by the court. When said alteration was made neither the plaintiff nor his counsel was present nor was either notified thereof. The said paper as originally prepared and signed by the parties is as follows:

"C. S. Despard, who heretofore presented his account for work and labor upon the court-house and jail, amounting to one thousand three hundred and seventy dollars, this day moved the court to receive the work and pay him the said sum of one thousand three hundred and seventy dollars, which repairs were accepted, bat upon consideration the court by agreement and consent of C. S. Despard doth hereby agree to submit a settlement of said claim to the ar bitration of two disinterested persons, one to be selected by the county court of Pleasants county and one by said Des pard, and they are empowered to select the third one or um pire, and they are empowered to send for persons and papers. Their award shall be final. They shall be selected and their names sent to the clerk within ten days, and shall meet at St. Marys, in the county of Pleasants, and shall give notice of the time and place of their meeting to the said C. S. Des pard and to the county of Pleasants.

"County Court Pleasants Co.,

"By Jam.es W. Williamson. "C. S. Despard.

"St. Marys, May 12, 1880."

The plaintiff introduced this paper in evidence, and proved by other evidence that his account sued on was due to him from the defendant and unpaid. And thereupon the plain tiff being on the stand as a witness on his own behalf was asked, on cross-examination, this question: "Was the re pairs done in a workmanlike manner, and the court-house and jail left in a finished condition?" To this question the counsel for the plaintiff objected, and the court excluded it. The defendant then introduced a witness on its behalf and asked him the same question which was likewise objected to and excluded.

The defendant next offered in evidence the order-book of the county court and proposed to read therefrom to the jury the transcript of the aforesaid paper of May 12, 1880, as copied on said book and altered by interlining before the word "accepted" the word "not" as hereinbefore described. To the reading of which the plaintiff objected, but the court overruled the objection and said transcript was read to the jury. In rebuttal of this the plaintiff offered to read the original paper after having proved its execution, and that said transcript had been taken from it and subsequently altered as aforesaid, and the defendant objected, but the court overruled its objection. This is the same paper pre viously read to the jury by the plaintiff. The defendant then offered as a...