Kinsley v. Monongalia County

• Decision Date: 15 September 1888
• Citation: 7 S.E. 445,31 W.Va. 464
• Parties: Kinsley v. Monongalia County.
• Court: West Virginia Supreme Court

7 S.E. 445

(31 W.Va. 464)

Kinsley

v.Monongalia County.

Supreme Court of Appeals of West Virginia.

September 15, 1888.

1. Counties—Contracts—Performance.

Where a county court made a contract for making a road and building a bridge according to certain specifications, and added, " to the satisfaction of the court, " it means that it must be done according to the specifications, and that would be to the satisfaction of the court. In such case, in a suit by the contractors for damages for breach of the contract, the declaration need not allege that the work was done " to the satisfaction of the court."

2. Same—Evidence—Report op Commissioners.

Where an action is brought for breach of contract made by commissioners of a county court with the plaintiff, a report made by these commissioners to the county court, that the contractor had failed to comply with his contract, is improper evidence.

3. Payment—Pleading—Joinder of Issue.

A plea of payment should conclude to the country; and, where a plea of payment is pleaded, the plaintiff may, without the formal addition of the similiter, proceed to trial as though the issue had been formally joined.

4. Jury—Empaneling—Oath—Validity of Verdict.

If the jury be sworn to try the issue, and several issues have been joined, and the verdict of the jury is responsive to them all, the appellate court will disregard such irregularity, and will consider all the issues as decided by the verdict.

5. Appeal—Review—Instructions—Matters not Apparent on Record.

Where the court refuses an instruction to the jury, the appellate court would not reverse the judgment, unless enough of the evidence had been set out in the exception to show the relevancy and propriety of the instructionj because error must affirmatively appear; and for the same reason, if the court gives the instruction, before the appellate court will reverse the judgment the record must show the instruction wrong, or that it could not, in any aspect of the case, be properly given. (Syllabus by the Court.)

Error to circuit court, Monongalia county; A. B. Fleming, Judge.

P. H. Keck, for plaintiff in error. Berkshire & Sttirgiss, for defendant in error.

Johnson, P. John A. Kinsley, in December, 1884, brought assumpsit against the defendant to recover damages for breach of contract for altering a road and building a bridge for said county. The declaration contained the common counts, and also a special count. The defendant demurred to the declaration and each count, and the court overruled the demurrer. The defendant then pleaded non assumpsit, on which the plaintiff took issue. The defendant also pleaded payment, to which plea there was no formal replication. The jury was sworn to try the issue, and rendered a verdict for theplaintiff for the sum of $287. A motion was made by the defendant to set aside the verdict, and for a new trial, which motion the court overruled, and entered judgment on the verdict. During the trial the defendant saved three several bills of exceptions: The first, to the refusal of the court to admit in evidence a certain order of the county court; the second, to the giving of an instruction; the third, to the refusal to set aside the verdict and grant a new trial. To the judgment the defendant obtained a writ of error and supersedeas.

The first error assigned is to the overruling of the demurrer to the declaration. The only objection urged against the declaration is that the special count is fatally defective, because it does not allege that the work on the railroad bridge was done to the satisfaction of the court. The bond executed by the contractor, Kinsley, with Lanham and Hall sureties, to do the work, recites the contract; which was as follows: That Kinsley, for the sum of $800, should make the road and bridge according to certain specifications, which were set out; and, in the bond, the contractor bound himself, "in consideration of the sum of eight hundred dollars to be paid to the said John A. Kinsley when said work is completed, according to the specifications aforesaid, and to the satisfaction of the county court of Monongalia county, " to complete said work, according to said specifications, by November 1, 1883. The bond concludes: "Now, if the said John A. Kinsley shall fully and faithfully perform said work according to the specifications aforesaid, and within the time aforesaid, then the above obligation to be void; else to remain in full force and virtue." If the work was done according to the specifications, and within the time required, it would certainly be to the satisfaction of the court, within the meaning of the terms of the bond. The contract was to make the road and build the bridge, according to the specifications, and within the time specified, for the consideration of $800. It was not necessary that the declaration should allege that they were made and built "to the satisfaction...