Luck Const. Co v. Russell County

• Decision Date: 11 September 1913
• Citation: 115 Va. 335,79 S.E. 393
• Parties: LUCK CONST. CO. v. RUSSELL COUNTY.
• Court: Virginia Supreme Court

79 S.E. 393

(115 Va. 335)

LUCK CONST. CO.

v.RUSSELL COUNTY.

Supreme Court of Appeals of Virginia.

Sept. 11, 1913.

Error to Circuit Court, Tazewell County.

Action by the Luck Construction Company against the County of Russell. Judgment in favor of the defendant, and the plaintiff brings error. Affirmed.

Hart & Hart, of Roanoke, Chapman & Gillespie, of Tazewell, and Finney & Wilson, of Lebanon, for plaintiff in error.

H. A. Routh, of Lebanon, and HensOn & Bowen and A. S. Higginbotham, all of Tazewell, for defendant in error.

BUCHANAN, J. The plaintiff in error, who was the plaintiff in the trial court, entered into a written agreement with the county of Russell for the construction of some six miles of macadam road. When the plaintiff had performed its undertaking, as it claimed, it presented to the board of supervisors of that county for allowance and payment a claim for $9,914.38, the balance due under the contract as it claimed. The board of supervisors refused to allow the claim, and from its action the plaintiff appealed to the circuit court for Russell county. It being agreed that there was good cause for removing the cause to another circuit, it was re-moved to the circuit court for Tazewell county.

There was a verdict and judgment in that court for the defendant and a recovery in its favor for the sum of $1,060.68. To that judgment this writ of error was awarded.

The first error assigned is to the action of the court permitting the defendant to file a special plea of set-off under section 3299 of the Code.

The first ground of objection is that no such plea could be filed in an appellate court.

By section 844 of the Code it is provided that "no action shall be maintained by any person against a county upon any claim or demand until such person shall have first presented his claim to the board of supervisors of such county." By section 838 it is provided, that, when any such claim is presented to and disallowed by the board of supervisors, the claimant may appeal within a named time; and by section 843 it is declared that such determination by the board of supervisors shall be final and conclusive and a perpetual bar to any action in any court, unless an appeal be taken from such action, or unless the board shall consent and agree to the institution of an action by such claimant. This is the manner prescribed by law by which claims against the county may be collected, and the county cannot be sued in any other mode than that prescribed by law. Botetourt v. Burger, 86 Va. 530, 533, 10 S. E. 264.

While the method prescribed by the statute for litigating the rights of the parties as to the claim so disallowed is called an appeal, the action of the board of supervisors is in no proper sense of the term an adjudication of the claim on its merits, and even where the claim has been allowed by the board such action will not estop the county from setting up a defense to the claim when subsequently sued upon it. Board of Supervisors v. Catlett's Ex'rs, 86 Va. 158, 162, 163, 9 S. E. 999, and authorities cited.

In that case it was held that the powers and duties of the board of supervisors are executive and not judicial, and that its allowance of a claim is not an adjudication and does not bar its contesting the claim's validity and pleading the statute of limitations when a mandamus is applied for to compel payment. And a fortiori this would be true where the claim has been disallowed.

The county had the same right to file a plea of set-off under section 3299 of the Code as it had to make any other defense which the facts justified it in making.

A further objection to the action of the court in permitting the special plea of set-off to be filed is that it does not aver fraud or any other matter which would entitle the defendant to recover over against the plaintiff, and amounts to no more than the general issue. This latter objection does not seem to be much relied on, and if it were is plainly without merit The allegations of the plea if true, show that the plaintiff not only failed to keep and perform its agreement in various particulars, but that by reason of such failure the defendant was injured and damaged in excess of the amount claimed and sued for by the plaintiff.

Errors are assigned to the action of the court in giving and refusing instructions, in admitting evidence, and afterwards in refusing to exclude the same and in overruling the motion of the plaintiff to set aside the verdict of the jury because contrary to the law and the evidence. The propriety of the action of the court in respect to all these assignments of error depends for the most part upon what is the true meaning of the contract sued on.

The contention of the plaintiff is, and its assignments of error are based chiefly upon the view, that the monthly estimates of the engineer in charge of the work were conclusive upon the parties. On the other hand, the county claims that these monthly estimates are not conclusive of the statements contained in them.

By the terms of the agreement between the parties and the specifications which are expressly made a part of it, it is provided, among other things, that "payments shall be made monthly upon approximate estimates of the engineer, reserving ten per cent. (10 per cent.) of amounts due until a final settlement. * * * In case any of the said work done or materials provided by the party of the first part shall be unsatisfactory to the said engineer, then the party of the first part shall, on being notified thereof by the engineer, immediately remove such unsatisfactory work or materials and replace the same with good work or materials satisfactory to said engineer, " and in the event the plaintiff did not do so the engineer was given the right to remove such rejected work or materials at the expense of the plaintiff. It was then provided, in the same clause, that "no work shall be regarded as accepted until the final acceptance of the whole work herein contracted for." It was further provided that "to prevent all disputes and litigation it is further agreed by the parties hereto that the said engineer shall decide all questions, difficulties and disputes of whatever nature which may arise relative to the construction, prosecution and fulfillment of this contract, and as to the character, quality, amount and value of any work done, material furnished under or by reason of this contract, and his estimates and decisions upon all claims, questions and disputes shall be final and conclusive upon the parties thereto."

It further provides that the plaintiff should not be "entitled to demand or receive payment for any portion of the work to be done under or by reason of the contract until all disputes, disagreements and questions between the parties hereto affecting the right to any portion of the amount claimed shall have been settled as above provided for."

There are other provisions of the contract which throw some light upon its meaning as to the question under consideration, but the provisions quoted are those chiefly relied on by the parties to sustain their respective contentions.

The agreement does not, as do many if not most contracts for the construction of railways, macadam roads, and the like, expressly provide that when the work is...