Tucker v. The Justices of Iredell

• Decision Date: 31 August 1854
• Citation: 46 N.C. 451,1 Jones 451
• Court: North Carolina Supreme Court
• Parties: SAMUEL TUCKER v. THE JUSTICES OF IREDELL.

1 Jones (NC) 451

46 N.C. 451

SAMUEL TUCKER

v.THE JUSTICES OF IREDELL.

Supreme Court of North Carolina.

August Term, 1854.

The return of the defendants to an alternative mandamus will be taken as tru?? unless its falsity is shown by the petitioner.

Where the return of the defendants is filed, which admits a material allegation set out in the petition, but avers new matter in avoidance, the issue, to avail the petitioner, in falsifying the return, should be taken on the new matter, and not on the admitted fact. Such an issue as the latter will be treated as immaterial.

Where a mandamus is asked for, to compel the Justices of a county to pay for the building of a bridge, and a verdict is rendered by a jury, finding that the bridge was not built according to the contract, the petitioner has no right to recover, in this form of action, the value of the bridge, during the time it had been used by the public.

APPLICATION for a mandamus to compel payment for building a bridge over the South Yadkin River, heard before his Honor Judge CALDWELL, at Spring Term 1853, of Iredell Superior Court.

The petition was as follows:

“To the honorable the Judge of the Superior Court of Law in and for the county of Iredell, State of North Carolina:

The petition of Samuel Tucker respectfully showeth to your Honor, that, at the November sessions, 1847, of the Court of Pleas and Quarter Sessions for the county aforesaid, the Justices thereof made an order, and caused the same to be entered of record, appointing Henderson Forsyth, Enos Gaither and Alexander Bailey, Commissioners, to let and contract for the building of a bridge over the South Yadkin river, near where Belts' bridge formerly stood.

Your petitioner further showeth that the said Commissioners, in the month of January, 1848, contracted with your petitioner for building said bridge, at the place designated, according to certain written specifications, describing and establishing, with great particularity, the kind of a bridge, the manner of building it, and the material to be used about the same; that the said Commissioners required your petitioner to sign specifications, and the same were returned to, and are now on file in the office of the clerk of the County Court, and that, to secure the performance of the contract, your petitioner was required to and did execute a bond, with good security, in the sum of two thousand dollars, which said bond was delivered to the said Commissioners, for and in behalf of the county of Iredell, and returned to the said Court, and is now on file in the clerk's office.

And your petitioner further showeth that the said Henderson Forsyth, Enos Gaither and Alexander Bailey, in contracting with your petitioner, only acted for and in behalf of the county, and by virtue of their appointment as Commissioners as aforesaid, of the County Court.

And he further showeth, that the said South Yadkin River, at the place designated, is within the limits of Iredell county, and within the jurisdiction of the County Court.

Your petitioner further showeth, that it was contracted by the Commissioners aforesaid, to pay your petitioner the sum of seven hundred and ninety-nine dollars, for building the bridge according to the said specifications.

Your petitioner further showeth, that he soon thereafter went to work, and employed a large number of hands, and, in as substantial and workmanlike manner, as the specifications would admit, built and completed a bridge, which, in every respect, your petitioner positively avers, corresponded to the specifications above mentioned; that, in all things, he performed his contract, and followed the said specifications as his guide. Your petitioner further showeth to your Honor, that the said Commissioners, after viewing and examining the bridge after its completion, entirely approved the same, and made their report to the November session, 1848, of the County Court, stating their examination and approval, and recommending that your petitioner be paid the sum of seven hundred and ninety-nine dollars, according to agreement, (which is filed as an exhibit.) That, upon the presentation of said report, and, according to its recommendation, the Justices of the Court, at the said November session, 1848, made an order, directing the county trustee to pay to your petitioner the sum of $799, for building the bridge as aforesaid contracted for, and completed by your petitioner, a copy of which order, marked B, is herewith submitted, as a part of this petition. Your petitioner further showeth to your Honor, that said bridge thereupon was opened to and used by the community as a county public bridge; and your petitioner applied to the county trustee for his pay; that said trustee deferred payment at the time for the want of the necessary county funds wherewith to discharge the same. Your petitioner further showeth to your Honor, that, after said bridge had been used by the citizens of the county, and the public generally, a part of said bridge fell down, not because of any deficiency in the execution of the work on the part of your petitioner, as he is fully convinced and satisfied, but entirely from the plan of the bridge itself, as prescribed in the said specifications, and your petitioner shows, that it is next to impossible to make a permanent bridge on the plan proposed: for this one reason that the pillars, built of common rough rock, without mortar or cement, and bounded and built as specified, of only four feet base, and twenty feet high, and three feet at top, are not calculated to stand and support a bridge; that your petitioner has taken the opinion of an intelligent engineer, upon the plan of the pillars and bridge, and he states, unequivocally, that such a structure could not be expected to stand. And your petitioner shows to your Honor, that he faithfully and to the best of his ability, performed the work specified by the county, and for which he and the Justices, by their Commissioners, contracted, and that he did not contract to insure the work to be permanent, and is in nowise responsible for defects in the original plan of the work. Your petitioner further showeth, that, after said bridge had fallen in part, the Justices, at the February Term, 1849, rescinded ther former order of payment, and have instructed their County Trustee not to pay your petitioner. Your petitioner shows to your Honor, that he has repeatedly demanded his money, and sought to obtain it, but that his demands have been and still are met with positive refusal; that, having performed his contract, according to his written directions, and received an order for his money, he is now strictly entitled to receive, from the treasurer of the county, the sum of $799, with interest on the same, from the 17th November, 1848, until the same be paid; and as he can have no relief in the premises, save by the extraordinary process of mandamus, he shows that he is entitled to the same; that he learns from the clerk of the County Court, and so shows to your Honor, that the following are the Justices of the Peace, in and for the county of Iredell, (setting them forth at large.)

Your petitioner therefore prays your Honor, that an alternative mandamus may issue to the aforesaid Justices, commanding them, that, unless they show good cause to the contrary, whenever thereto required by this honorable Court, they pay, or cause to be paid, by the officers of this county, the said sum of $7?? 9, with interest thereon, from the said 17th of November, 1848; that, upon their failure to show such cause, they be absolutely and peremptorily commanded by this honorable Court, to pay to the petitioner, the aforesaid sum of $799, with the interest thereon, as aforesaid.

Osborne Guion and Boyden, Attornies.

+--------------------+
                ¦NORTH CAROLINA,   ¦)¦
                +------------------+-¦
                ¦Iredell County.   ¦)¦
                +--------------------+
                

Samuel Tucker maketh oath, that the several matters of fact set forth in the foregoing petition, as of his own knowledge are true, and those as not of his own knowledge, he believes to be true.

SAMUEL TUCKER.

(Sworn to before the Clerk of Superior Court.)

This petition was then entered upon the minute docket of the said Court. and the following proceedings had, viz:

+--------------------------------+
                ¦SAMUEL TUCKER,                ¦)¦
                +------------------------------+-¦
                ¦vs.                           ¦)¦
                +------------------------------+-¦
                ¦THOMAS A. ALLISON, and others,¦)¦
                +--------------------------------+
                

This petition coming on to be heard on the petition and affidavit of the petitioner, it is ordered by the Court, that, unless the defendants shall pay the sum of $799, and interest, as prayed for in the plaintiff's petition, on or before the first day of January, 1852, that the Clerk of the Superior Court of Iredell county shall issue notices to the several defendants, to show cause, at the next term of this Court, wherefore a writ of mandamus shall not issue, as prayed for by the petitioner.

And at Spring Term, 1852, said suit appears on the trial docket, and the following proceedings are had: Motion to quash disallowed, and defendants required to make a return.” From which order the defendants were allowed to appeal. No appeal bond to be filed, by consent.

In the Supreme Court, the judgment below was affirmed (13 Ired. Rep. 434;) which, being certified, an alternative mandamus issued, requiring the defendants to pay the petitioners the sum of $799, with interest, or show cause, and make return to the next term of the Court.

At the Fall Term, 1852, of our said Court, came the defendants and made return to the said petition of Samuel Tucker, as follows:

To the petition of Samuel Tucker, praying a mandamus against the justices of Iredell county, they the said justices make return, and for cause show respectfully, to this Honorable Court, that they, from the best of their knowledge and belief, in refusing the payment of the petitioner, as alleged...