State ex rel. Panola County v. Oliver

• Decision Date: 28 May 1900
• Citation: 78 Miss. 5,27 So. 988
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI, USE OF PANOLA COUNTY, v. ABNER F. OLIVER ET AL

27 So. 988

78 Miss. 5

STATE OF MISSISSIPPI, USE OF PANOLA COUNTY, v. ABNER F. OLIVER ET AL

Supreme Court of Mississippi

May 28, 1900

March 1900

From the circuit court, second district of Panola county, HON. Z M. STEPHENS, Judge.

The state, suing for the use of Panola county, appellant, was the plaintiff in the court below; Oliver, and others, appellees were defendants there. The suit was upon the bond of one J B. Wynne, deceased, who in his lifetime was the county convict contractor of Panola county, and the defendants were the sureties on his bond as such contractor and the administrator of his estate. Wynne became convict contractor on the first of February, 1897, and died May 28, 1897. Had he lived his contract would not have expired until the end of the year 1897. The suit was for alleged defaults occurring before and after Wynne's death.

On the trial the plaintiff offered in evidence a number of receipts given the sheriff for convicts by Wynne in his lifetime and after he became contractor. These receipts, on defendants objection, were excluded, and plaintiff duly excepted. The verdict of the jury and judgment of the court below was in plaintiff's favor for $ 291.75. Plaintiff appealed to the supreme court, and defendants prosecuted a cross appeal.

Reversed on appeal and cross appeal, costs of appeal divided, and remanded.

Leland L. Pearson, for appellant and cross appellee.

The law as in the Banks case, 66 Miss. 431, makes the contract an executed one and the contractor's liability fixed and absolute when, in the words of Cooper, J., "the prisoner is delivered, or offered to be delivered, to him" by the sheriff as provided by law. A most critical search of subsequent legislation fails to disclose any change in the law in this regard. Code of 1880, §§ 3157 and 3159; sections 18 and 19, laws of 1896, p. 146; section 6, laws 1894, p. 67.

The contract is not required to be let with reference to the moral character, personal skill or peculiar fitness of the contractor; on the other hand, this idea is especially negatived by the extreme jealousy of the lawmaker in stipulating just what is required of the contractor, and how and when it shall be done. The law does not provide that the contractor should possess any personal qualification whatever. It does not even provide that he shall be a responsible person. His personal fitness is nowhere, in terms or by possible implication, as much as suggested. If the law provided that the contractor should work the convicts in any certain manner which required a peculiar personal skill on his part, an inference might arise that the contract was made in some sort with reference to this peculiar qualification, and it then might be argued with some plausibility that the contract was intended to be a personal one. As it is, the contractor may work the convicts at any sort of labor "not exceeding ten hours per day or from sun to sun." Not only is the peculiar personal fitness of the contractor not an element of the contract, but the law nowhere suggests the test or requirement of any certain amount of financial responsibility or worth on the part of the contractor. It is the "best bidder being the person who will agree to pay the highest amount, " etc., the law looking to the bond required for its guarantee of the faithful performance of the contract by whomsoever entered into.

The fact that the bondsmen may have executed the bond because of their belief in the personal fitness and responsibility of Wynne in properly and successfully handling the convicts, cannot avail them as a defense against liability on the bond. If Wynne was liable, so are they, notwithstanding anything they may have expected of or relied upon from Wynne personally. So we conclude, and so contend, that this is not a personal contract, attaching only to Wynne personally and dying with him, but it is one that his personal representative can fully and fairly execute, and the law will so require.

The receipts given to the sheriff for convicts by Wynne in his lifetime were clearly competent evidence, and the court below erred in excluding them.

Lowrey & Perkins, for appellees and cross appellants.

The first and most important question in this case, and the settlement of which, if in favor of cross appellants, will obviate the necessity of settling any other question, is "whether or not the legal representative of the county contractor was bound to continue to work the convicts and pay their wages after the death of the contractor." In other words, was the continued existence of the contractor essential to the performance of the contract?

We invite the attention of the court especially to the case of Cox v. Martin, 75 Miss. 229, and the note to Chamberlain v. Dunlap, 22 Am. St. Rep., there cited. These authorities settle two principles, viz.: First, when the continued existence of the particular person contracted with is essential to the completion of the contract, his death terminates the contract. Second, the line of demarkation is not very clearly marked in some instances, and the facts and circumstances of each particular case will be taken into account in determining whether the contract was purely personal in its nature, and was therefore determined by the...