Livingston Cnty. v. Graves

• Decision Date: 31 July 1862
• Citation: 32 Mo. 479
• Parties: LIVINGSTON COUNTY, Appellant, v. JOHN GRAVES et al., Respondents.
• Court: Missouri Supreme Court

32 Mo. 479

LIVINGSTON COUNTY, Appellant,

v.JOHN GRAVES et al., Respondents.

Supreme Court of Missouri.

July Term, 1862.

Appeal from Livingston Circuit Court.

Aikman Welch, attorney general, for appellant.

I. The court erred in refusing to strike out parts of defendants' answer, as moved by plaintiff. The defences set up are inconsistent. In the fifth and sixth counts defendants deny the validity of the contract, and deny all responsibility thereon. In the first and second counts the defendants admit their responsibility on the contract, but attempt to confine and limit that responsibility. In the third count they plead a full compliance with the contract as they construe it. In the fourth count they plead a want of consideration. These inconsistent defences should have been stricken out. (2 R. C. 1855, p. 1233, § 14.)

II. The court erred in permitting respondents to read in evidence the order of the Livingston County Court. Said order was not competent testimony to vary the terms of the contract sued upon. The responsibility of respondents was upon their bond, and this order could not increase or diminish that responsibility. A bond executed in pursuance of a statute is valid though not exactly conforming to such statute; a fortiori, the bond will be valid though it may vary in a single particular from the order of the county court. (State v. Thomas, 17 Mo. 503; Gathwright v. Callaway Co. 10 Mo. 664; United States v. Tingley, 5 Peters, 128; Grant & Finney v. Brotherton's adm'r, 7 Mo. 458. See also Brown v. Crawford Co. 8 Mo. 660; and Bogarth v. Caldwell Co. 9 Mo. 355.)

III. Where an agent or servant shall depart from the instructions of his principal or master in the performance of some act, and the principal or master, after being informed of such variance, shall acquiesce therein for a considerable length of time, and until rights and responsibilities have accrued thereon, such principal or master will be held as having ratified the act and it becomes as valid as if strictly in accordance with the instruction given, and neither the principal or master, nor the party with whom the servant or agent may contract, will be allowed to take advantage of such variance after such contract shall have been fully complied with by one party and partially so by the other. A subsequent ratification is equivalent to a previous authority. (Paley on Agency, 143; Ward v. Evans, 6 Modern, 37; Thorold v. Smith, 11 Modern, 88; Wilson v. Poulter, 2 Strange, 859; Lent v. Padelford, 10 Mass. 236; Barnaby v. Barnaby, 1 Pick. 221; Culver v. Ashley, 19 Pick. 300; 1 Amer. Leading Cases, 589, and authorities cited.) This rule is as applicable to corporations as to individuals. (Angell & Ames on Corp. 351; Fleckner v. The Bank of the U. S., 8 Wheat. 363.)

IV. The covenant of the respondents to keep the bridge in repair for three years includes a covenant to rebuild in case of the destruction of such bridge by fire or other accident. A party will be excused from the performance of duty when such duty is created by law, without any default in him; but where the party by his own contract creates such duty, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. (2 Sanders, 422, n. 2; Phillips v. Stevens, 16 Mass. 237; Beach v. Crain, 2 Comst., N. Y., 93; Chitty on Cont. 343, 344; Pym v. Blackburn, 3 Vesey, 38; Taylor on Landlord and Tenant, 230.)

The Legislature has changed this well-established rule of law so far as a tenant's liability is concerned. (R. C. 1855, p. 352.) But the principle remains in all its force in all other cases to which it may be applicable; expressio unius est exclusio alterius. The defendants in the first count of their answer admit that the covenant to keep in repair will include a total loss arising “from the perils to which bridges are ordinarily liable, to-wit, the dangers from floods, high water, and the like;” but a covenant to repair includes a loss by fire as well as by flood.

Ray, for respondents.

There are several matters of defence set up in the answer, all of which are designed to raise the proper construction and validity of the bond sued on, to three of which only I propose to call the attention of the court:

I. That a loss by fire was not within the meaning of the contracting parties, and consequently not within the provision and protection of the bond.

II. That by the fourth section of act on bridges, 1845, the County Court are to determine how long the bridge shall be kept in repair (not less than two nor more than four years); and that said court by its order dated December 19, 1853, determined that it should be kept in repair for two years only after its completion, (12th of November, 1855,) and that it was not destroyed in that time, but after its expiration, (say 14th of February, 1858.) That the commissioner, in taking the bond for three years, violated the order of the court, exceeded his instructions, and that the bond is without authority of law, and therefore void; that same was not binding on the county, and if so not obligatory on defendants. Contracts to be valid must be binding on both parties, or neither is bound.

III. That the covenant to repair contained in said bond is without consideration, and therefore void, the whole of the contract price ($2,800) having been paid for the erection, and nothing paid, or agreed to be paid, for the covenant to repair.

The first and third propositions are mere questions of law--as a matter of construction--to be determined by inspection of the bond.

In opposition to the doctrine contained in the first proposition, it is...