Mitchell v. Hancock County

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWHITFIELD, C. J.
Citation91 Miss. 414,45 So. 571
PartiesJOHN W. MITCHELL v. HANCOCK COUNTY
Decision Date10 February 1908

45 So. 571

91 Miss. 414

JOHN W. MITCHELL
v.

HANCOCK COUNTY

Supreme Court of Mississippi

February 10, 1908


October, 1907

FROM the circuit court of Hancock county, HON. WILLIAM H. HARDY, Judge.

Hancock county, appellee, was plaintiff in the court below; Mitchell and others, appellants, defendants there. From a judgment in plaintiff's favor, defendants appealed to the supreme court.

The suit was for the breach of the bond of a bridge builder against appellant, Mitchell, the principal, and the other appellants, sureties on the bond. The declaration alleged that Mitchell contracted with the county to build a bridge across a creek according to specifications; that, having constructed the bridge Mitchell was required by his contract to and he did execute the bond sued upon, conditioned as set forth in the opinion of the court; that the county accepted the bridge and paid Mitchell the agreed price therefor; that, subsequently, before the expiration of the time within which Mitchell was bound, in case of its damage or destruction except by fire, to repair and rebuild it, the bridge was destroyed, but not by fire; and that Mitchell, although requested to do so, failed and refused to rebuild the bridge, although obligated thereto by his contract and the bond; and that the county's damage from the failure exceeded the amount of the bond.

To the declaration appellants pleaded "that the bridge in question was destroyed by an act of God, to-wit, an unprecedented high water and flood, against which defendants did not insure, and on account of which defendants should not be held liable." A demurrer was sustained to the plea and, defendants not asking to plead further, judgment final was rendered for the county.

Judgment affirmed.

Napier & Huddleston, for appellants.

Was the plea of destruction of the bridge by unprecedented high water and floods a valid defense to the action? Or, to state it differently, did the appellants insure against the destruction of the bridge by "unprecedented high water and floods?"

We frankly admit that the confusion in the text books in respect to "acts of God," "inevitable accidents," and like terms, has resulted in rather loose verbiage in wording the plea under consideration, but the fact that the bridge was actually destroyed by unprecedented high water and floods, whether the same be called an act of God or an inevitable accident, is the defense here attempted.

Chief Justice SHARKEY, in the case of Neal v. Saunders, 2 Smed. & M., 572, enunciated the true doctrine which should govern in cases of this kind: "The law of contracts is a part of the contract; and, in the absence of express stipulations, the law governs. It is not to be presumed that the party undertook beyond the terms of his contract. His silence is not to be construed into an engagement to do more than the terms of his contract and the law required."

The law of contracts is for the courts to interpret, and every contract should receive that construction which will best effectuate the intention of the parties. Clark on Contracts, 589.

The bond sued on is made under Code 1892, § 3937 (Code 1906, § 4449), between the county and the appellants who were ordinary citizens and not habitual bridge builders, and the contract should be construed with this in mind. Contracts are presumed to be made with reference to the law as it existed at the time of the making. Carter v. Cox, 44 Miss. 148. Under the circumstances, was it in the purview of the parties that the appellants were insurers against an unprecedented flood? The parties had in mind ordinary phenomena of nature, and the appellants intended to insure against loss by usual and expected spring freshets and autumn floods.

We are well aware that some of the text book writers say that acts of God will excuse non-performance of a duty created by law, but not one created by contract. But when we analyze the cases cited by the text books as authority for this, we find that the words relied on are obiter dicta, or that the party, sought to be held, contracted to do the thing whose non-performance made the breach, and, moreover, that it was so written in the contract. The true rule is that if the moving party writes the...

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19 cases
  • Berry v. Lamar Life Ins. Co., 30006
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...is not relieved from liability to perform under a contract, on account of impossibility of performance. Mitchell v. Hancock County, 45 So. 571, 91 Miss. 414; U. S. F. & G. v. Parsons, 112 So. 469, 147 Miss. 335, 53 A.L.R. 88; Hannah v. Long, 14 So. 530; Walton v. Hollis, 16 So. 260; Harmon ......
  • Berry v. Lamar Life Ins. Co., 30006
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1932
    ...is not relieved from liability to perform under a contract, on account of impossibility of performance. Mitchell v. Hancock County, 45 So. 571, 91 Miss. 414;U. S. F. & G. v. Parsons, 112 So. 469, 147 Miss. 335, 53 A. L. R. 88; Hannah v. Long, 14 So. 530; Walton v. Hollis, 16 So. 260; Harmon......
  • United States Fidelity & Guaranty Co. v. Parsons, 25685
    • United States
    • United States State Supreme Court of Mississippi
    • March 21, 1927
    ...be found on the face of the contract to build. Jamison v. McDaniel, Miss. ; Harmon v. Fleming, 25 Miss. 135; Mitchell v. Hancock County, 91 Miss. 414. The provision requiring the owner to take out fire insurance in proportion to his interest in the building necessarily implies that the owne......
  • United States Fidelity & Guaranty Co. v. Parsons, 25685
    • United States
    • United States State Supreme Court of Mississippi
    • March 21, 1927
    ...be found on the face of the contract to build. Jamison v. McDaniel, Miss. ; Harmon v. Fleming, 25 Miss. 135; Mitchell v. Hancock County, 91 Miss. 414. The provision requiring the owner to take out fire insurance in proportion to his interest in the building necessarily implies that the owne......
  • Request a trial to view additional results

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