United States Fidelity & Guaranty Co. v. Jefferson Davis County

Stevens, J.,

delivered the opinion of the court.

(After stating the facts as above).' Much is said in the briefs of counsel upon the contention made by appellee that a trial by jury in a court of equity is discretionary; that the chancellor has a right to direct a verdict, to adopt or reject the verdict of the jury and enter such decree as comports with his own conscience and his own conclusions upon the facts. It is the contention of appellee that any errors made in instructions cannot be relied upon by appellants, for the reason that the chancellor has adopted the verdict of the jury and thereby made it his own verdict on the facts; that, after all, the verdict of the jury amounts simply to the finding by the chancellor that complainant was entitled to recover the sum of nineteen thousand seven hundred and twenty-six dollars and seventy-two cents.

Under our view of this record, it is immaterial whether appellants may predicate error on the granting or refusing of instructions. The proof indisputably shows that Burkett breached his contract. The statements in his written resignation are against him on this point. In his written resignation submitted to the board he stated, and on demurrer to the bill in this case he successfully contended, that his contract with the county was illegal and void. It required an opinion of this court on the first appeal to determine this question. Furthermore, Mr. Burkett practically admits in his resignation that the price at which he agreed to work and maintain the roads would result in his financial ruin. In other words, -he frankly admitted that he' had made a poor contract and could not live up to it. He entered into a thirty-five thousand dollar bond, and under the proof this bond is liable for the actual damages sustained by the county the result of. an admitted breach of the contract. There was no error, then, on part of the chancellor in granting the peremptory instruction No. 1, and we see no substantial error in the granting of any of the instructions given upon the trial of this case.

Appellants complain of the refusal of certain instructions which in effect told the jury that if they believed that Burkett worked and maintained the roads in accordance with the plans and specifications, and that notwithstanding this fact the members of the board acted arbitrarily and wrongfully in refusing to report the roads worked up to plans and specifications, and for that reason failed and refused, to pay Burkett for the work already done, that then Burkett had a right to discontinue his work, and in such event the jury should find for the defendant. The contract itself expressly stipulates that the members of the board are to be the sole judges as to whether or not the roads at any time are in fact worked according to the plans adopted. The board by the terms of the contract are invested with a discretion in determining whether the roads are maintained according to plans and specifications. They are public officers, and the contract expressly invests them with discretion and judgment in the premises. There is no evidence that any member of the board acted fraudulently. There was no error, therefore, in refusing instructions that the jury might find for the defendant.

The contract for the breach of which damages are here sought is materially different from a building or purely construction contract. We have said in the opinion heretofore rendered:

“This is a contract, not only for constructive work, but for the continuous repair and maintenance of roads, from day to day and from month to month, during the period provided for.”

It was a contract that required Mr. Burkett at all times to oversee the public roads and to expend from , day to day and week to week needed labor and material. In the very nature of things the public roads are for the use of the traveling public day and night, and the contractor assumed the obligation of keeping the first and second class roads of the county in a passable condition. More than this, he obligated himsélf to keep and maintain them according to the plans agreed upon. By the terms of his contract he was to be paid in July, October, and January. He failed to maintain the roads for the year 1912, and as a result thereof was only paid four thousand seven hundred and fifty-three dollars and four cents. If he had maintained the roads in 1912 according to contract, he would have received twelve thousand one hundred and eighteen dollars and twelve cents. He did not give the traveling public and the county what they were entitled to receive for the year 1912. In January, 1913, the board relet the contracts, and confessedly in reletting the contracts the board could not possibly then relet a contract for the working or maintenance of the roads for the year 1912. They did, however, relet the contract for the years 1913, 1914, and 1915, and this at a materially increased rate per mile.

Counsel for appellants with much persuasion contend that any measure of damages requires that we should take into account what Burkett would have received in the year 1912, had he completed his contract for that year. The new contractors, however, were not concerned with the year 1912, and necessarily confined their bids to the balance of the time, subsequent to the year 1912. It may be true that the new contractors bid more for the year 1913 than they would have bid if Burkett had maintained the roads in 1912 strictly according to his contract. But this is speculative, and a matter about which it is impossible for the court to have actual knowledge. If this were a building contract, manifestly the amount Burkett would have received in 1912 should be taken into account. But in the reletting of a building contract the owner ultimately gets what he originally contracted for — a completed building, one structure. In the instant case it was impossible for the county, upon reletting the contracts, to get what it originally contracted with Burkett to receive, to wit, good roads continuously from March 1, 1912, to January 1, 1916. Furthermore, this contract is fairly divisible into different years. If Burkett had maintained the roads according to contract for the year 1912, he would have been entitled to receive the full consideration for that year. By his own fault he placed himself in an attitude where he could not recover for any balance due in 1912. Certain it is that he earned ■ nothing for the years 1913, 1914, and 1915, and for those years he was paid nothing. By the very terms of his contract he was to receive nineteen dollars and ninety-five cents per mile for each of these three years, a stipulated price different from that for 1912. At the expiration of the year 1912, the board could only relet and did relet a contract for the last three years, and in doing so proceeded according to statute, and were governed by the lowest bid submitted. Surely the county has a right to recover what it actually cost the board in having done what Burkett was obligated to do. It is contended that Burkett had practically maintained his roads according tos grade and plans on the first Monday in October, 1912, when he resigned. There is evidence, however, of certain objections and defects which had not been complied with, and it may be assumed that at no time had Burkett fully complied with his contract.

In their contention that the contract was one and indivisible, counsel for appellants rely upon the case of United States Fidelity & Guaranty Co. v. Tate County, 74 So. 769 (No. 18,868), decided by Division A of this court at a former day of this term. The issue in the last-named case, however, was a different issue from the one here presented. In the Tate County case there was, as here, only one contract, and one breach of that contract. The sole point presented to the court was whether there was one, or more than one, cause of action for damages against the contractor. The court correctly held that, in the one suit for damages, all damages then or thereafter to be sustained should have been recovered. The court in that case did not undertake to hold that, if the contractor had performed fully his work for any installment, he would not be entitled to recover that installment and proceed with his work; that the compensation provided by the contract to be paid in any installment is designed to cover, and must cover, work done for that period of time. The writer is clearly of the opinion that if the contractor had earned any particular installment, and had not breached his contract, he would be entitled to demand of 'the board any past-due installment, and upon their refusal to pay he could institute proper action for the recovery thereof. So in the instant case Mr. Burkett could have completed his contract for the year 1912, and in the absence of a breach of his contract might have compelled the county to pay him for that particular year. We believe that, in reletting the contracts for the years 1913, 1914, and 1915, the board had a right to ignore the period of time covered by 1912, to deal with new contractors for the unexpired term, and, if the new contracts are seasonably let, to recover from Burkett the actual difference between the new contracts and what Burkett himself would have received for the indentical time covered by these new contracts.

We do not think Mr. Burkett has a right to complain at the action of the board in working the roads by convicts for a short period of time. If the roads in district No. 1 had been contracted to new contractors at an earlier date, it would have simply added to the damages for which Burkett is liable. It appears from all the evidence that Burkett must have contracted at a low figure, and that upon any reletting of the contracts for any beat there would have been an advance in the bid. It is evident that Burkett is not being held liable for any period of time in which the convicts worked the roads in district No. 1. We do not think this temporary arrangement on the part of the board operated as a waiver of' their right to relet the contract for the unexpired term of Burkett’s contract. There is no intimation that the convicts did their work in an unworkmanlike manner, or that Burkett in any wise suffered damages by reason of the delay. The verdict of the jury was fully warranted by the testimony and we see no cause to disturb it. .The bond in this case has been made to answer the very purpose for which it was executed.

Affirmed.