Supervisors Of Jackson Co. v. Leonard

• Decision Date: 17 April 1880
• Citation: 16 W.Va. 470
• Court: West Virginia Supreme Court
• Parties: Supervisors of Jackson Co. v. Leonard, et al.

16 W.Va. 470

Supervisors of Jackson Co.

v.Leonard, et al.

Supreme Court of Appeals of West Virginia.

Decided April 17, 1880.

(*Absent Johnson, Judge.)

An action of covenant was brought upon the following bond:

" Know all men by these presents, That we, George K. Leonard and A. G. Leonard, Alfred Foster, Thompson Leach and Wm. B. Caswell are held and firmly bound unto the Board of Supervisors of Jackson county, State of West Virginia, in the sum of ten thousand dollars, to the payment whereof well and truly to be made, we jointly and severally bind ourselves, our joint and several heirs and personal representatives. Sealed with our seals and dated thi 29th day of October, 18(17.

'' The condition of the above obligation is such, that, whereas the above bound George K. Leonard did on the 29th day of October, 1867, make and enter into a contract with K. S. Brown, Charles Harpold, John Rawlins, Denning Wardner and Isaiah Morgan, commissioners, acting for and on behalf of said Board of Supervisors, whereby the said Leonard agreed to build, erect and complete a good and substantial bridge, with solid stone abutments and good and durable wooden superstructure, to be in all respects erected, built and completed according to the said contract in writing to be attached to these presents, and reference is here given thereto for more full particulars of the way and manner said bridge is to be completed: Now, if the said George K. Leonard shall erect and complete the said bridge at the place, within the time and in the manner prescribed in the said contract hereunto annexed as aforesaid, and shall in all respects complete, thereby meaning comply with the said contract on his part, then this obligation shall be void, else to remain in full force and virtue.''

*Counsel below.

The declaration also set out the contract between said George K. Leonard and the commissioners designated in the bond (which contract was not signed by the other obligors to the bond) and alleged as breaches, "that defendants have not, nor have either of them, well and truly performed, fulfilled and kept all things in said writing obligatory and contract thereto annexed mentioned and maintained'on the part of the said defendants to be performed, fulfilled and kept, according to the tenor and effect, true intent and meaning of said writing obligatory and contract thereto annexed, in this, to wit, that the said defendant, George K. Leonard, has not in any manner complied with the said contract to build the said bridge; that he, the said George K. Leonard, def enclant, did not erect and complete a good, substantial and durable bridge across," &c. and thus proceeded to allege the breaches by George K. Leonard of each covenant in his contract with the commissioners, and then concludes thus: "and so the plaintiff in fact, saith, that the defendants, although often requested so to do, have not kept the said covenants by them so made as aforesaid, but have broken the same, and to keep the same with said plaintiffs have hitherto wholly neglected and refused," &c. Held:

I. The agreement in the bond, was that the obligors should pay moneyjto the Board of Supervisors, conditioned upon the nonperformance by George K, Leonard of his contract to build the bridge, and not an agreement on their part to build the bridge. Therefore, upon failure of George K. Leonard to build the bridge, as per his contract he was required to do, then the penalty of the bond became forfeited, and the plaintiff had the right to sue upon the bond for the penalty, and as prescribed by the Code, section seventeen, chapter one hundred and thirty-one, should have recovered such damages as had been sustained, not exceeding the penalty of the bond: because if the obligors are guilty of a breach of contract at all, it is that of not paying the penalty of the bond after Leonard's non-performance of his contract, and that should have been the breach alleged in the declaration..

II. Covenant cannot be maintained upon the condition of the bond, there being no act stipulated to be done in the condition, and the condition merely showing a matter of defeasance. III. The real and substantial contract on 'the part of the obligors in the bond is the agreement or obligation to pay the $10,000, for the recovery of which either debt or covenant may lie, but the action of debt is preferable.

Writ of error and supersedeas to a judgment of the circuit court of the county of Mason, rendered on the 16th day of April, 1878, in an action of covenant in said court then pending, wherein the Supervisors of Jackson county were plaintiffs and George K. Leonard and others were defendants, allowed upon the petition of said defendants.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

Moore, Judge, furnishes the following statement of the case:

This is an action of covenant, brought by the supervisors against George K. Leonard and others in the circuit court of Wood county, founded on a writing obligatory, and a contract set out in the declaration The declaration was demurred to in the circuit court of Wood county, October 3, 1871. The case was removed to the circuit court of Mason county, which said last court overruled the demurrer on the 16th day of April, 1878, and the case being then submitted to a jury, the jury found for the plaintiff and assessed the damages at $4,228.97, aggregate of principal and interest at date of verdict, upon which judgment was given. The case was brought to this Court upon writ of error. The substantial question for consideration by this Court, being the demurrer to the declaration, the declaration, although long, is set out in full.

declaration. State of West Virginia, Wood County, to wit: In the Circuit Court thereof:

"The supervisors of the county of Jackson, complain of George K. Leonard, A. C. Leonard, Alfred Foster, Thompson Leach and William B. Caswell, being summoned, &c., of a plea of covenant broken, for that whereas, heretofore, to-wit: on the 29th day of October, 1867, at the county of Jackson, to wit, at the county aforesaid, the said defendants, and each of them, by their certain writing obligatory, signed by the said defendants, and each of them, and sealed with the seals of the said defendants, and each of them, and now to the court here shown, the date whereof is the day and year aforesaid, the said defendants, and each of them, covenanted and agreed with the said plaintiff by the name of the Board of Supervisors of Jackson county, West Virginia, in substance and to the effect following, that is to say:

"Know all men by these presents, That we, George K. Leonard and A. G. Leonard, Alfred Foster, Thompson Leach and William B. Caswell, are held and firmly bound unto the Board of Supervisors of Jackson county, State of West Virginia, in the sum of $10,000.00, to the payment whereof well and truly to be made, we jointly and severally bind ourselves, our joint and several heirs and personal representatives. Sealed with our seals and dated this 29th day of October, 1867.

'The condition of the above obligation is such, that whereas, the above bound George K. Leonard did on the 29th day of October, 1867, make and enter into a contract with R. S. Brown, Charles Harpold, John Rawlins, Denning Wrardner and Isaiah Morgan, commissioner, acting for and on behalf of said Board of Supervisors, whereby the said Leonard agreed to build, erect and complete a good and substantial bridge, with solid stone abutments, and good and durable wooden superstructure, to be in all respects erected, built and completed according to the said contract in writing to be attachec to these}>resents, and reference is here given thereto for more full particulars of the way and manner said bridge is to be completed: Now, if the said George K. Leonard shall erect and complete the said bridge at the place within the time and in the manner prescribed in the said contract hereunto annexed as aforesaid, and shall in all respects complete, thereby meaning comply with the said contract on his part, then this obligation shall be void, else to remain in full force and virtue.

"The said contract, signed and sealed with seal of the said defendant, George K. Leonard, by the name of G. K. Leonard, and on its face is without date, but was in truth and fact signed with the hand of the said George K. Leonard and sealed with his seal on the said 29th day of October, 1867, and was made and signed by three of the said commissioners named therein as appointed by and acting for and on behalf of the Supervisors of the county of Jackson, by the name of the Board of Supervisors of Jackson county, to wit, R. S. Brown, Isaiah Morgan and Denning Wardner, by the name of D. Wardner, who signed the said contract as commissioner, and although the other two commissioners, to wit, Charles Harpold and John Rawling, did not sign said contract as set forth in the aforesaid writing obligatory signed and sealed bv the defendants, yet the said contract is the same one referred to in said writing obligatory, which was to be and was attached and annexed to said writing obligatory, and to which reference was given for more full particulars of the way and manner said bridge was to be completed in the said writing obligatory; and the said contract is in substance and effect following, that is to say:

"Article of agreement, made and entered into between George K. Leonard, of Wood county, West Virginia, party of the first part, and R. S. Brown, Charles Harpold, John Rawling, Denning Wardner and Isaiah Morgan, commissioners appointed by and acting for and on behalf of the board of supervisors of Jackson county, and Slate aforesaid, parties of the second part, witnesseth: "That the party of the first part doth agree to build, erect and complete a good, substantial and durable bridge across Big Sandy creek, at the location of the present bridge across said creek where the Charleston, Ripley and Ravenswood...