Chandler v. State ( 1881 )

Harrison, J.

As section 640 of Gantt's Digest, which made it the duty of the county court to require owners of toll bridges to give bond and security for the performance of their obligations to the public, had been, by the act of March 6, 1875, repealed, when the writ was sued out, the failure before the repeal, to give bond as ordered by the board of supervisors, was thereby waived.

We may remark here, that the order of the board of supervisors, from which the appeal was taken, in the casé of Chandler v. Montgomery county, 31 Ark., 25, in regard to the same toll bridge as is the subject of controversy in this case, was made and the appeal taken therefrom to the Circuit Court previous to said repeal.

w Amanee',

Whilst it plainly appears to have been the design and intention, when the privilege of establishing atoll bridge at the Caddo Gap Narrows was granted to the appellant by the county court, that it should extend through, and span the entire length of the narrows ; yet if it was, as is alleged in the answer, found after repeated efforts, impracticable to build a bridge of that length that would withstand the force of the current, and he to carry out his contract with the county built a shorter bridge, and of inconsiderable length, and for the remainder of the way raised the ground with earth and rock, and by this means the passage through the narrows was made equally as safe and convenient, and answered the public want and necessity as well as if the bridge extended the whole way, as was originally intended, the essential purpose of the grant was accomplished, and the intention thereof, substantially, if not literally performed. Indeed, when it became apparent that a bridge all the way through the narrows, could not be kept up, it became the duty of the appellant to carry out the object of the grant or charter to him, by other available means ; for, where the essential purpose of a contract can be accomplished, and the intention of the pai’ties can be substantially, though not literally executed, such substantial performance, is required. Bish. on Con., sec. 627; White v. Mann, 2 Maine, 361: Williams v. Vanderbilt, 28 N. Y., 217. And so then, if the real object in view was completely attained and the interests of the public as fully subserved by the road, or the small bridge and the approach or approaches to it, constructed by the appellant, as they could have been if there had been a bridge extending all the way, there was not a misuser nor a non-user of the franchise.

The answer we think was sufficient, and the demurrer to it should have been overruled.

The judgment is reversed, and the cause remanded for further proceedings.