Meriwether v. Lowndes County

• Decision Date: 28 January 1890
• Citation: 7 So. 198,89 Ala. 362
• Parties: MERIWETHER v. LOWNDES COUNTY.
• Court: Alabama Supreme Court

7 So. 198

89 Ala. 362

MERIWETHER v. LOWNDES COUNTY.

Supreme Court of Alabama

January 28, 1890

Appeal from circuit court, Lowndes county; JOHN MOORE, Judge.

Action by Lowndes county against R. L. Meriwether, as administratrix of the estate of J. N. Meriwether, deceased, on a bond made by the defendant's intestate. The breach complained of is the failing of the contractor or obligor to rebuild a bridge which had been washed away, after having been notified to do so by the board of revenue of said county. The defendant pleaded the general issue, and a special plea of "the act of God" in the bridge being washed away.

Rice &amp Wiley, for appellant.

G Cook, for appellee.

SOMERVILLE J.

The bond of the defendant's intestate, which is here sued on for the consideration specified, bound him, by covenant, not only to build the bridge contracted for by the county of Lowndes, but also for five years to keep the structure in repair. The express condition of the undertaking is that said bridge shall be "kept in good repair" by the obligor, and shall "remain safe continuously from the time of its acceptance [by the county,] for the period of five years, for the passage of travelers and other persons, as well as for all purposes for which said bridge may be properly and lawfully used."

It is not denied, on the one hand, that the bridge in question was constructed in a skillful and workman-like manner, nor, on the other, that the county had the authority to contract generally for the construction of bridges, free or toll, and to take a bond to keep them in good repair for a stipulated period. Code 1886, §§ 1442, 1456, 1457. The breach of the bond assigned is that the bridge was washed away by a flood, within the period it was stipulated to stand, and thereby became impassable to the public, and that the defendant's intestate refused to rebuild and repair the bridge, although notified to do so by the board of revenue of the county, which was invested with the jurisdiction and powers conferred by the statute on courts of county commissioners in reference to the subject of bridges.

1. The main defense urged to the suit is that the bond imposed no duty on the obligor to rebuild the bridge, but only to keep it in repair so long as it stood; and that the structure was destroyed from no defect in the work, but by an extraordinary and unprecedented flood, which was an act of God, not covered by the covenants of the bond. This defense was clearly not good. There is a long line of cases, both in England and this country, which settle the proposition that an unconditional express covenant to repair or keep in repair is equivalent to a covenant to rebuild, "and binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger;" and that, while an act of God will excuse the non-performance of a duty created by law, it will not excuse a duty created by contract. Abby v. Billups, 35 Miss. 618, 72 Amer. Dec. 143, and note, p. 148; Ross v Overton, 3 Call, 309; Polack v. Pioche, 95 Amer. Dec. 115, note, 121, 122; Hoy v. Holt, 91 Pa. St. 88; Miller v. Morris, 40 Amer. Rep. 814; School-Dist. v. Dauchy, 68 Amer. Dec. 371; Beach v. Crain, 49 Amer. Dec. 369, note, 374; Van Wormer v. Crane, 16 N.W. 686; Warren v. Wagner, 75 Ala. 188; Nave v. Berry, 22 Ala. 382. The courts have no authority to relieve contracting parties from the hardships often occasioned by such contracts, as it is within the power of obligors to provide in advance by excepting liability for casualties of this nature from the terms of their contracts, if they so elect. The contract, moreover, shows that the duty of keeping "in good repair" is coupled with the covenant that the bridge shall "remain safe" for the period stipulated. And the statute clearly contemplates that when a...