Moss v. Rowlett

• Decision Date: 27 November 1901
• Citation: 112 Ky. 121,65 S.W. 153
• Parties: MOSS et al. v. ROWLETT et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 153

112 Ky. 121

MOSS et al. v. ROWLETT et al. ^[1]

Court of Appeals of Kentucky.

November 27, 1901

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by Reuben E. Moss and others against J. N. Rowlett and others on the bond of J. N. Rowlett as road contractor. Judgment for defendants, and plaintiffs appeal. Affirmed.

John F Lockett, for appellants.

C. C. &amp G. D. Givens and Yeaman & Yeaman, for appellees.

HOBSON J.

The county roads in Henderson county are worked by taxation under sections 4313-4325, Ky. St. By section 4313 a county supervisor of roads is to be appointed for a term of two years. By section 4314 he is to execute a bond, with sureties approved by the court, in double the amount of the bridge and road fund. By section 4315, after 20 days' notice in writing at each voting place in the county, he is empowered to let out to the lowest and best bidder, who shall give bond with surety, the working and keeping in order of the county roads, the work to be done as prescribed in the bonds; and by the consent of the county judge may designate certain roads, and make contracts privately for the working of these. In March, 1898, the supervisor let out to appellee J. N. Rowlett eleven sections of the county roads at the price of $366.05. Two days later he let to Rowlett five other sections for $113.75, making in all $479.80, and took from Rowlett a bond with his coappellees as sureties for the faithful performance of his contract in a sum not to exceed twice the amount specified. After this, on June 16, 1898, appellant Reuben E. Moss, Jr., while traveling along one of the sections covered by the bond, driving three horses ahead of him, fell through a culvert, and was painfully injured. The culvert was about five feet deep. The bridge over it was about twelve feet long, and gave way because the sills under it were rotten, and not of sufficient strength. The defect in the sills could only be seen by going under the culvert. Wagons and other conveyances had been passing over it, and a binder had gone over it a few days before. Appellee had six horses with him, but all six were not on the bridge at one time. Two had passed over. How fast he was traveling does not appear. He filed this action against the contractor and his sureties to recover $1,500 damages for his injuries.

As the bond was in double the sum specified, it only bound the obligors on its face for the payment of twice $479.80, or $959.60. The rule is settled that the recovery on such a covenant must be limited to the amount of the bond. Woods v. Com., 8 B. Mon. 112; Hughes' Adm'r v. Wickliffe, 11 B. Mon. 202; Carter v. Thorn, 18 B. Mon. 619; 4 Am. & Eng. Enc. Law (2d Ed.) 701. It is insisted for appellants that this rule is changed by section 3752, Ky. St., which is part of chapter 93, tit. "Office and Officers." The section is so connected with 3751 and 3753 that it cannot be properly understood unless read in connection with them. The three sections, so far as material, are as follows:

"The obligation required by law for the discharge or performance of any public or fiducial office, trust or employment, shall be a covenant to the commonwealth of Kentucky from the person and his sureties that the person shall faithfully discharge the duties of the office, trust or employment, but a bond or obligation taken in any other form shall be binding on the parties thereto according to its terms." Section 3751.

"Actions may be brought from time to time on any such covenant or bond in the name of the commonwealth, for her benefit, or for that of any county, corporation or person injured by a breach of the covenant or condition, at the proper costs of the party suing, against the parties jointly or severally, together with the personal representatives, heirs and devisees or distributees of such of them as may be dead; and the recovery against principal and surety shall not be limited by the amount of the penalty named in such bond." Section 3752.

"No officer from whom a covenant is required shall enter upon the duties of his office until the same is given." Section 3753.

The covenant or bond referred to in section 3752 is evidently the obligation required by law for the discharge or performance of any public or fiducial office, trust, or employment provided for in section 3751, and which an officer from whom a covenant is required must execute, under section 3753 before entering upon the duties of his office. The words "any public or fiducial office, trust, or employment," do not, by any fair construction, include those who make contracts with a county for a valuable consideration. If a man should undertake with the county by contract to furnish fuel for heating the court house, or timber to repair a bridge, or rock to cover a highway, it cannot be said that he would exercise any public or fiducial office, trust, or employment. The roads, under the statute, might be let publicly or privately. The public contractor and the private contractor stand precisely alike. To hold appellees within these sections, it would be necessary to hold all persons who make contracts with the county, such as for the erection of bridges, court houses, caring for blind persons, and the like, to be within its operation. The county, as a quasi corporation, makes many contracts, and the persons who contract with it stand just as they do in contracts made by them with other persons, natural or artificial. We conclude, therefore, that appellees are liable under their bond only according to its terms and to the extent of the amount specified in it. It remains to inquire what this liability is. This must be determined by the statute under which the bond was given, which is as follows: "The contractor's bond required by the preceding section shall be given to the commonwealth for the benefit of the county, with good surety, to be approved, and attested by the supervisor or judge in at least double the amount of the value of the work to be done, and conditioned for the faithful performance of the work within the prescribed time, and shall be returned by the supervisor or judge to the county court at its next ensuing term,...