Pauly Jail Bldg. & Mfg. Co. v. Hemphill County

• Decision Date: 15 May 1893
• Docket Number: 135.
• Citation: 62 F. 698
• Parties: PAULY JAIL BLDG. & MANUF'G CO. v. HEMPHILL COUNTY.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F. 698

PAULY JAIL BLDG. & MANUF'G CO. v. HEMPHILL COUNTY.

No. 135.

United States Court of Appeals, Fifth Circuit.

May 15, 1893

This was an action brought by the Pauly Jail Building &amp Manufacturing Company, of St. Louis, Mo., against the county of Hemphill, state of Texas, upon a contract entered into June 22, 1888, whereby the plaintiff contracted to build for defendant county, at the county seat, the town of Canadian, a jail and cells, according to certain specifications agreed upon, and the defendant county agreed, upon the completion of said jail building, to pay to the plaintiff $13,000 in 6 per cent. coupon bonds, to be issued by the defendant county. The plaintiff's petition alleged and set up the contract and specifications at length, and that it had completed said jail building in accordance therewith, but that defendant refused to pay plaintiff anything for the jail, or make or deliver its bonds, as it had contracted to do, to plaintiff's damage, as is alleged, of $15,000. One of the provisions of the contract, as set out in plaintiff's petition, is 'Said party of the second part further agrees to appoint a commissioner, whose duty it shall be to inspect and report upon the work during its construction, said commissioner to be a man qualified to judge of the work; and should any work be done, or should any material be furnished, which, in his opinion, is not in accordance with plans and specifications it shall be his duty to notify the party of the first part thereof, by letter mailed to its address at its principal office, in St. Louis, Mo., unless said commissioner and the agent or subcontractor of said party of the first part can agree upon the subject in controversy. Should said commissioner allow said work to be completed without notice it shall be considered the same as an acceptance of the work by the party of the second part. When notice of the time fixed for the completion thereof is given by the said party of the first part, the said commissioners' court shall convene in special session at a time to be fixed by the said party of the first part, examine the said work, and receive the report of said commissioner, and, if completed according to contract, shall accept the same, and make payment therefor as hereinbefore agreed.'

The defendant, in answer to plaintiff's petition, among other defenses, charged that 'plaintiff and its agents, having full authority in the premises, entered into a combination and conspiracy with one Polly, the county judge for said Hemphill county, and at least two of the commissioners for said county, for the purpose of defrauding said county by building a jail, and palming the same off upon said county at at least three times its cost and value, the profits and gains thereon to be divided between the plaintiff and said county judge and said commissioners;' that 'Hemphill county, through her county judge and commissioners, and before the plaintiff had expended anything upon the faith of said pretended contract, protested against said contract, and repudiated the same, and that, if the plaintiff ever built a jail pursuant to or under said contract, the same was built by the plaintiff, at his own risk, over the protest and in defiance of the wishes of the defendant, the plaintiff relying solely upon a void contract, obtained by debauching and corrupting the commissioners' court for said county, to burden the defendant with an illegal debt;' that 'the clause in said contract providing that a commissioner should be appointed by the defendant to represent it in the construction of such jail was fraudulently inserted by the plaintiff, in order to overreach the defendant, and to estop it from complaining of worthless work and material, and not from any honest and legitimate purpose, and to enable the plaintiff to take advantage of its own fraud and wrong, and is against public policy and void. ' It charged also that, knowing that the plaintiff was proceeding forcibly to build the jail, and that it would rely upon the clause providing for the appointment of a commissioner, the commissioners of defendant county appointed one Robert Moody to act as such commissioner, as was provided by the contract, with the express agreement with the plaintiff that such appointment should not be held as a recognition of the contract. The defendant also charged that the plaintiff did not use bricks of the kind required by the specifications, but soft and worthless ones; that it used a class of stone apparently sound and durable, but which was known by plaintiff and its agents to be unsound, and wholly unfit for the work; and that it did falsely and fraudulently represent to said Moody that said stone was sound and durable. It also claimed that Moody was not an expert in judging of the quality or grade of cement or paint or tin to be used, and in each of these respects the plaintiff, to keep him from objecting to the quality used, did falsely and fraudulently represent to the defendant and to Moody that the quality and grade of each of these articles were the best grade and quality; and that he (said Moody) was so induced not to object to the use of the same, but that the quality and grade of such were worthless, cheap, and inferior to what had been specified in the contract. It is alleged that plaintiff and its agents did fraudulently and secretly use, in the cement work of the floor, grass, weeds and other perishable material, instead of broken stone or brick, as required in the specifications; that plaintiff failed and refused to place galvanized iron window and door caps on the windows and doors, and elbows on the down spouts sufficient to conduct the water away from the building, and willfully, intentionally, and fraudulently failed to comply with the contract in almost every particular.

The plaintiff then filed a supplemental petition, and demurred to the plea of defendant which set up the matters of bribery and interest of its commissioners in the contract, because the same were no defense to plaintiff's said action, and to the plea of revocation of contract, because it was not alleged that the same was done with plaintiff's consent. The plaintiff further excepted to that part of defendant's answer wherein the ignorance, incompetency, and unfitness of the commissioner or supervisor appointed by the defendant was set up, as it did not allege or contend that the said commissioner acted fraudulently or corruptly. The plaintiff further excepted to so much of the first amended original answer as pleaded that the provision of the contract for the appointment of a commissioner or supervisor was inserted in defendant's contract with fraudulent intent for the purpose of deceiving and overreaching the defendant, because that allegation constituted no defense to plaintiff's cause of action, and that the defendant is estopped from pleading its ignorance of said contract. The plaintiff further excepted to all of the said original answer which sought to set up, by way of defense, the failure to perform the work according to the contract, because said amended answer nowhere alleged that due notice of such defects, if any, at the time of their occurrence, was mailed to plaintiff at St. Louis, in accordance with the terms of said contract; and that this defect is not cured or obviated by any allegation as to the ignorance or unskillfulness of said commissioner.

The case coming on to be heard, the court sustained the plaintiff's first and second exceptions, which were to so much of said answer as set up bribery of the commissioners and the revocation of the contract, and that the paragraph of the contract which provided for the appointment of a commissioner was fraudulently inserted, and that alleged the walls to be out of plumb, and that plaintiff and its agents wholly failed and refused to place galvanized iron window and door caps upon the building, to which ruling the defendant excepted; whereupon, the trial being had before a jury plaintiff introduced in evidence certified copies of the records of the county court of Hemphill county for 22d of June, 1888, authorizing the county judge to sign the contract for building the jail building, and the original contract and specifications; also, the order of the county court appointing Robert Moody as commissioner on the part of the county, as provided for by the contract, and the testimony of John Rausch, the superintendent of the plaintiff company engaged in the construction and erection of this jail building, who testified generally as to the building, saying that it was constructed according to the plans and specifications, and in most particulars it was better, showing the particulars wherein the building differed, if any, from the specifications in the contract, and claimed in several respects that the work done and quality of material used was better than called for. Here the plaintiff rested its case. The defendant then read letters showing that Moody, the commissioner or supervisor, appointed by the commissioners' court for said county, had complained to the plaintiff, at its home office at St. Louis, and also to...