Appeal
from circuit court, Macon county; W. D. Denson, Judge.
Action
by Macon county against the Sloss Iron & Steel Company and
others for breaches of their bonds securing contracts for the
hire of county convicts. From a judgment for plaintiff
defendants appeal. Reversed.
This
was an action brought by Macon county against the Sloss Iron
& Steel Company and E. W. Rucker and Thomas Seddon. The
complaint, as originally filed, contained two counts, which
were in words and figures as follows: (1) "The
plaintiff, Macon county, claims of the defendants, Sloss Iron
& Steel Company, a corporation, Thomas Seddon and E. W
Rucker, the sum of twelve hundred dollars, with interest
thereon from the first day of January, 1893, and twenty per
cent. damages on said sum, for the breach of the conditions
of a bond made by the defendants on the 1st day of January
1890, payable to the plaintiff, in the sum of two thousand
dollars, with the following condition: 'The condition of
the above and foregoing obligation is such that whereas, the
above-bound Sloss Iron & Steel Company has hired all of the
Macon county convicts for a term beginning on the first day
of January, 1890, and ending on the 31st day of December
1893, and has this day made and entered into a contract with
the agent of the hard labor of said county for the hire of
said convicts, which said contract is here referred to, and
made by reference a part thereof. Now, if the said Sloss Iron
& Steel Company shall well and truly comply with the terms of
said contract, and faithfully do and perform all that he is
therein required to do and perform in the manner therein
required, *** then the above obligation is to be void
otherwise to remain and continue in full force and
effect,'-which said bond plaintiff alleges was duly and
legally approved by the judge of probate of said county. And
plaintiff alleges that the condition of said bond has been
broken by the defendants, in this: that the Sloss Iron &
Steel Company did on the 1st day of January, 1890, contract
in writing with W. H. Hurt, judge of probate of said county,
who was the duly-authorized agent of the court of county
commissioners of said county, to make said contract for the
hire of all convicts who had been, or who might thereafter,
between the 1st day of January, 1890, and the 31st day of
December, 1893, be, sentenced to hard labor for said county,
at the rate of nine dollars per month for each of said
convicts, said hire to become due and to be paid quarterly,
to wit, on the first day of April, July, October, and January
of each year; and defendants further agreed in said contract
that if default should be made in the payment of said hire,
or in any other payment required by the same, and suit to
recover the same should be instituted, twenty per cent.
damages should be added to the amount of such default, and be
recoverable as a part thereof. And plaintiff alleges that
said bond was executed in consideration of said contract, and
to secure the faithful performance of the same by the said
Sloss Iron & Steel Company; and plaintiff alleges that, in
accordance with the stipulations of said contract, plaintiff
delivered to said company a large number of convicts, to wit,
fifty-six (56) convicts, the same being all of the county
convicts, and has in all other respects complied with the
requirements of said contract; but plaintiff alleges that the
said company has wholly failed to pay plaintiff for the hire
of said convicts, and, after deducting all credits to be
allowed by the terms of said contract, is justly due
plaintiff, under said contract, the said sum of twelve
hundred dollars, with the interest and damages hereinbefore
set out, for which plaintiff prays judgment against the
defendants." (2) "The plaintiff further claims of
the defendants the sum of five hundred dollars, with interest
thereon from the 1st day of January, 1894, and twenty per
cent. damages on said amount for the breach of the condition
of a bond made by defendants on the 17th day of February,
1893, for the sum of two thousand dollars, payable to
plaintiff, and conditioned in all respects as the bond
described in the 1st count of this complaint, except that the
term of hire of convicts expressed therein is from the 1st
day of January, 1893, to the 31st day of December, 1895,
which bond was duly and legally approved by the probate judge
of said county, and was made in consideration and for the
faithful performance of the contract herein set forth. And
plaintiff alleges that the condition of said bond has been
broken, in this: The said Sloss Iron & Steel Company did on
the 17th day of February 1893, contract in writing with W. H.
Hurt, judge of probate of said county, the legally authorized
agent of the court of county commissioners of said county,
for the hire of all convicts then under sentence, and
thereafter to be sentenced to hard labor for said county,
from the first day of January, 1893, to the 31st of December,
1895; and the said company, by said contract, agreed to pay
to plaintiff for the said convicts twelve dollars per month
each for 1st-class convicts, nine dollars per month each for
2d-class convicts, and five dollars per month each for
3d-class convicts, and to furnish maintenance for deadheads,
the classification to be made by the board of penitentiary
inspectors. And plaintiff alleges that, by said contract, the
defendant company agreed to pay the hire of said convicts
quarterly, on the 31st day of March, June 30th, September,
and 31st December, each year. And plaintiff further alleges
that, in accordance with said contract, plaintiff delivered
to said company a large number of convicts prior to January
1st, 1894, to wit, twenty-four convicts, the same being all
the county convicts, and in all other respects plaintiff has
complied with said contract. But plaintiff alleges that said
Iron & Steel Company has wholly failed to pay plaintiff for
the hire of said convicts, and that said company is justly
indebted to plaintiff in the sum and damages hereinbefore set
out, and has damaged plaintiff as above stated; wherefore
plaintiff prays judgment against these defendants for said
sum." The plaintiff, by leave of the court, amended each
of the counts by increasing the amount sought to be
recovered. By leave of the court, the plaintiff further
amended the complaint by inserting the following words:
"And the plaintiff alleges that, at a regular meeting of
the commissioners' court of said county, an order was
passed, and entered on the minutes of said court, appointing
Judge W. H. Hurt to hire out the county convicts of the
county, as agent for said court, and authorizing him to hire
said convicts to defendants to work in the coal mines."
The defendants demurred to each of the counts in the
complaint, upon many grounds, which may be summarized as
follows: (1) The bond sued on is void, in that the same was
not conditioned as required by law. (2) Each count of the
complaint fails to disclose what convicts were delivered to
the Sloss Iron & Steel Company under the contract and bond.
(3) Each count in the complaint shows that payments were to
be made to the county quarterly, but fails to show how much
was due and owing to the county each quarter. (4) Each count
fails to allege that any classification was made by the board
of penitentiary inspectors. (5) As to the second count: It is
not averred how many of each of the three classes of convicts
mentioned in said contract were received by the contractor.
Each of these grounds of demurrer was overruled. Thereupon
the defendant filed the following special pleas: "(2)
For further answer, said defendants say that the defendant,
the Sloss Iron & Steel Company, paid the debt or demand for
the recovery of which this suit was brought, before the
action was commenced. (3) For further answer, these
defendants say that from time to time, at the expiration of
the several quarters at which, by the terms of said
contracts, the said contractor was to make payments, said
company furnished to the plaintiff an itemized statement,
showing the amount due the plaintiff for the hire of each
convict, and the amount due and owing for the same for the
quarter covered by such statement; that, after deducting all
payments made by said defendant company to said county, the
balance, when, as it often was, in favor of the county, was
paid by said company to said county, and the said county gave
its receipts in writing, stating that the sum so received was
in payment of the hire of convicts for the quarter covered by
such statement; that, when said balance was in favor of said
company, the amount due by the county was carried over to the
next quarter, then accounted for as aforesaid; that said
quarterly settlements were made from time to time until and
including the 31st of December, 1893; that said last
quarterly settlement showed a balance in favor of said county
of fifty-one 60/100 dollars and said sum was paid to said
plaintiff by said defendant company, and receipted for in
writing by said plaintiff. And these defendants say that on
each of said settlements, covering and including each quarter
from the 31st of March, 1890, to and including December 31,
1893, the balances ascertained to be due the county were paid
by defendant company, and received by the county, as being in
full of the sums due said county, and said county executed
its receipts for the same in writing; wherefore these
defendants say that the plaintiff is not entitled to recover
in this action. (4) For further answer to the complaint,
these defendants deny each statement and allegation thereof,
except the execution of the bonds sued on, and the execution
of the contracts...
