Leonard v. County Court Of Jackson County.

• Decision Date: 15 November 1884
• Citation: 25 W.Va. 45
• Court: West Virginia Supreme Court
• Parties: Leonard v. County Court of Jackson County.*(Johnson, P., absent.)

25 W.Va. 45

Leonard

v. County Court of Jackson County.^*(Johnson, P., absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 25, 1884.

Decided Nov. 15, 1884.

1. The liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in his obligation, he is bound and no farther. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He lias a right to stand upon the very terms of his contract. If the contract has been altered in the slightest particular, without his assent, he may say, Non in haec faedera vent."

2 Commissioners on behalf of the supervisors of a county contract with a bridge-builder to build a bridge for the county, reciting that the contractor is a bridge builder by trade and that the commissioners know but little about bridges, and providing that the contractor shall furnish all the materials and complete the bridge in a durable and substantial manner so that it shall stand the test of time and flood and be finished 1 and delivered for use on or before December 1, 1868; the bridge to be paid for in installments, but the last installment, which is to be paid by certificates of indebtedness out of the county levy of 1809, is not to be paid until the whole work is completed and received. For the faithful performance of this contract the contractor executed bond with securities. Upon the report of the commissioners that the bridge had been completed so far as they can see except one of the abutments which seems to them to be cracking and settling, the supervisors on Nov. 16, 1868, issued certificates for the last instalment to be paid out of the levy of 1869 and delivered them to the contractor. Within two years thereafter, a part of the bridge fell down and the county brought an action at law on the bond against the sureties therein. They filed their bill in equity, alleging the foregoing facts and claiming that the supervisors, by receiving the bridge in the condition it was and making the last payment as they did, varied and changed the obligation of their undertaking and thereby released them from liability on their bond, and asking a perpetual injuction against the prosecution of said action at law against them. Held:

That facts alleged in the bill did not show that the obligation of the plaintiffs had been varied or changed by the action of the supervisors, and that they were, consequently not discharged, and that the bill should be dismissed on demurrer.

Snyder, Judge, furnishes the following statement of the case:

The board of supervisors of Jackson county, by orders made and entered of record September 2, 1867, and October 7, 1867, appointed R. S. Brown and others commissioners to contract for the building of a bridge across Big Sandy creek near Ravenswood, in said county, in the manner and upon the terms and conditions specified therein. Pursuant to the authority thus vested in them, the commissioners, on October 29, 1867, made a contract with George K. Leonard, by which the latter agreed to build said bridge according to the plan and specifications therein set forth; and among other stipulations therein contained, are the following:

"And further, it is the express understanding and agreement that said party of the first part is to furnish all the material of whatsoever kind, and to build, erect and complete the said bridge in all respects of stone, iron and wood, in the best and most substantial and approved workmanlike manner as fully and particularly as if each item was herein specially mentioned and described, it being known and understood that the party of the first part is a bridge builder by trade, and the parties of the second part know but little about bridges, so the party of the first part is to build, erect and complete in manner aforesaid, the said bridge in a substantial and durable manner, so that the sameshall stand the test of time and flood, and to have the whole structure finished and delivered to the public for use on or before the first day of December, 1868.

"And it is further agreed that in consideration of thepremises aforesaid, the said parties of the second part, for and on behalf of the said board of supervisors of Jackson county, are to cause to be paid to the said party of the first part for the said bridge the sum of one thousand dollars on the execution of these presents, and the bond being given for the faithful execution of said work hereto annexed, and the residue of the money now being, to-wit, the sum of $, on the 15th day of December, 1867, and the residue of $9,000, (nine thousand dollars) the whole contract price to be paid as follows, to-wit: $3,500 (three thousand five hundred dollars) out of the levy of 1868, to be paid by certificates of indebtedness to be issued by said board of supervisors from time to time as the work progresses, or in cash if in the county treasury applicable thereto, and the residue, to-wit, the sum of $3,500 (three thousand five hundred dollars) out of the county levy of 1869, which last payment shall be by certificate of indebtedness drawn by said board of supervisors, and to bear interest from the time when said bridge shall be completed and received. Said work to be begun at once and prosecuted diligently as the weather may permit until completed; and said commissioners may estimate the work done and materials for the same on the ground at the end of each month, and certify the same to said board; and upon such certificate the said board are to pay the installments aforesaid, as the work progresses as aforesaid, from time to time as aforesaid, except said last installment which is not to be paid until the whole work is completed.and received as aforesaid."

At the same time, to-wit, Oct. 29, 1867, the said George K. Leonard and A. G. Leonard, Thompson Leach, W. B. Caswell and Alfred Foster as his sureties executed to said commissioners their joint and several bond in the penalty of $10,000 with the following condition thereto:

"The condition of the above obligation is such that whereas, the above bound George K. Leonard did, on the 29th day of October, 1867, make and enter into a contract with R. S. Brown, Charles Harpold, John Rawding, Deming Wagner and Isiah Morgan, commissioners acting for and on behalf of said board of supervisors, whereby the said Leonard agreed to build, erect and complete a good and substantial bridge, with solid stone abutments and good and durable superstructure, to be in all respects erected, built and completed according to said contract in writing to be attached to these presents, and reference is here given thereto for more full particulars of the way and manner said bridge is to be completed: Now, if the said George K. Leonard shall erect and complete the said bridge at the place within the time and in manner prescribed in the said contract hereunto annexed as aforesaid, and shall in all respects comply with the said contract on his part, then this obligation to be void, else to remain in full force and virtue."

Subsequently, the commissioners made their report to the board of supervisors in these words:

"The undersigned commissioners appointed by the board of supervisors of Jackson county, West Virginia, to contract for and superintend the building of a bridge over Big Sandy creek near Ravenswood in said county, do hereby certify that said contract was made with G. K. Leonard, of Parkersburg, and that he has built and completed said bridge in accord ance to the contract so far as we can see and to our satisfaction, except the north abutment, which seems to us to be cracking and settling, and within the time specified, but we do hereby recommend and direct that the president and clerk of the board of supervisors do issue to the said Leonard the county certificates of indebtedness for $3,500, payable out of the county levey of 1869, with interest from date, as specified in the contract, which amount is the balance in full of the contract price for said work, but we do not intend to release said contractor from any warranty expressed or implied, in said contract.

"Given under our hands this 10th day of November, 1868."

On November 16, 1868, the board of supervisors entered this report on their order-book and made and entered thereunder this order:

"The board of supervisors of Jackson county do hereby receieve the Sandy creek bridge near Ravenswood in this county from G. K. Leonard, contractors, as recommended by the commissioners, and order that he receive certificates of indebtedness, $3,500, in denominations as follows:

(1) one thousand certificate............................ $1,000

(4) four five hundred "....................... 2, 000

(2) two two hundred and twenty-five certificates.............. 450 (1) fifty-certificate,..................... 50

Aggregate............................................. $3,500."

Afterward, on July 24, 1871, the supervisors instituted an action of covenant in the circuit court of Wood county against said George K. Leonard and his sureties on said bond of Oct. 29, 1867 for an alleged breach of the condition thereof by the said George K. Leonard. The declaration in this action, after averring generally the breaches complained of, states that the said George K. Leonard failed to build said bridge in the manner and of the material specified in the said contract and that by reason of such failure, "in a very short time after the bridge was put up both of the abutments and all of the wing-walls gave way, and the whole structure from these causes and by reason of many other breaches in said contract, gave way and settled in such a manner that it had to be propped up, and the plaintiff was put to great trouble and expense, to-wit, to the expense of $3,000 in repairing the said bridge so as to make it at all safe for the public to pass over it." The damages claimed are $10,000. For...