"These appeals result from an action brought by J. H. Sparks against Jasper county to recover judgment for balances claimed to be due on three separate contracts for the construction of bridges in said county and the finding and judgment of the court on the pleadings and evidence. Appeals were taken by both plaintiff and defendant and should have been brought to this court on one bill of exceptions and as one case, but were brought up on separate bills of exceptions and as separate cases. They should be heard together. The lower court found against plaintiff on the first count of his petition and for him on the second and third counts of his petition; found against defendant as to its various defenses, except on the first count of the petition; found against defendant on all its counterclaims except $22 overpayment; and rendered a judgment in favor of plaintiff for the balance of $____. A concise showing of the issues made by the pleadings is as follows: The amended petition is in three counts: (1) Count on contract for Blackberry bridge, $2,895, with credit for $1,-400. Balance claimed, $1,495. (2) Count on contract for Tuckahoe or Turkey Creek bridge and moving and rebuilding bridge on Jones creek, $2,990, and for extra concrete pillars at Jones creek, $65; credits $1,100 paid; and claims balance of $1,995. (3) Count on contract for three steel bridges— Turkey Creek range line bridge, sections 32 and 33; span south end of Terry's Ford bridge; bridge across Center creek at Reed's Station—$9,650; credits $5,400; and claims balance of $4,250.
"Amended answer: (1) Denies right to recover $1,495 on Blackberry bridge or part, for reason contract was not let as provided by law. Advertised to be let at bridge site, and, if let at all, was let one-half mile or more from site, and contract used was obtained by fraud committed by plaintiff and Grieb, bridge commissioner, on county and county court. (2) Denies right to recover $65 for concrete pillars at Jones Creek bridge. No contract for same and no order of county court for same. The payment of $1,100 by county court was on contract for Tuckahee and Jones Creek bridges, and not on extra. Plaintiff has no right to apply any part on this extra concrete pillar work. (3) Defense as to $2,900, by virtue of order of Sparks to David Miller for $3,500, upon which county has paid $600 to Central National Bank, assignee, of order with plaintiff's approval, and after completion of bridge contracts paid said bank $2,600, for which defendant is entitled to credit.
"Counterclaims and offsets by defendant: (1) Claim for $1,400 paid on Blackberry bridge for the same reasons for defending against first count for balance claimed on said bridge. (2) Claim for $2,471; $22 being amount overpaid as shown by contracts and payments on Carl Junction, Belleville, and Rucker's Ford bridges. The contract being $13,678, and the payment being $13,700. $2,449 of claim being for amount paid for extra span on Carl Junction bridge. Said span being built without any contract upon an order of the county court without any compensation being fixed. (3) Claim for $15,935; $4,850 for Terry's Ford bridge, $2,645 for Duenweg bridge, $4,745 for Hille's Ford bridge, $2,545 for Center Creek bridge, $1,250 additional 50 feet on Terry's Ford bridge.
"There is little or no dispute about the facts when you get into the evidence, so the questions before the court are mainly questions of law.
"1. The plaintiff insists that the finding of the court against him on the first count of the petition was error, and that the judgment rendered thereon should be reversed. The plaintiff's evidence upon this count of the petition tended to prove: That the contract
for building the bridge was advertised to be let by public outcry at the site of the proposed bridge, and that on the day designated for letting the contract the road and bridge commissioner of the county, accompanied by plaintiff and three other prospective bidders for said bridge, went by rail to Carl Junction, and from there drove in a hack to a point about one-half mile from the site of said proposed bridge, and in plain view thereof; that they looked at the site from that distance but saw no one there; that said bridge commissioner announced then that he would then and there let the bridge contract by public outcry to the lowest bidder; that in good faith he proceeded to let the contract by outcry, and received several bids from the various parties who accompanied him, among whom was the plaintiff, who bid $2,895, which was the lowest bid made; and that the contract was then and there awarded to the plaintiff for said sum, which was afterwards approved by the county court, and, in pursuance thereof, the contract sued on was executed. The defendant's evidence tended to prove that, when the parties got to within about one-half mile of the site of the proposed bridge, they realized that they could not drive on to the site and return in time to catch their train, home-bound, at Carl Junction, and that they turned round and drove back to the junction without letting the contract or attempting to so do. The court gave an instruction for the plaintiff and defendant presenting their respective theories of the case. Under the evidence and the instructions, the court found the facts for the defendant and rendered judgment accordingly. This action of the court is assigned as error.
"The law requires public notice to be given of the proposed letting of contracts for building bridges, stating the time and place the contract will be let. The object of the notice is to inform prospective bidders of the proposed letting, so that they may meet there and make competitive bids for their construction. The court found, and justly so, we believe, that the bridge commissioner and the bidders who accompanied him did not know, nor could they testify positively, that there were no prospective bidders at the site of the proposed bridge on the day the contract was advertised to be let. These parties may have been in full view of the site, and they may not have seen any one at or near there. Yet that does not signify that there was no one there in fact, for they may have been there and still not observable from the point where plaintiff claims the contract was let, which was a half mile or more from the site. Prospective bidders might have been there, down in the creek, the banks of which might have obstructed the view. At any rate, this was a matter the trial court had a perfect right to take into consideration in passing upon the weight to be given to their testimony. In addition to what has just been said, the positive testimony of one of the party who drove out to the point where the contract was said to have been let is to the effect that the country between that point and the bridge site was rough and uneven, and...
