County of Foster v. Morris

Goss, J.

This is k suit on a bond which is set forth in full.

Undertaking.

Know all men by these presents, that we (here follow the names of twenty-seven persons, among them the eight defendants) are held and firmly bound unto the county of Foster in the penal sum of $3,000 lawful money of the United States, to be paid to the said county of Foster; for which payment, well and truly to be made, we hereby jointly and severally bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, by these presents.

The condition of the above obligation is such that whereas the board of county commissioners in and for the county of Foster and state of North Dakota has called an election for the purpose of voting upon the question of said county issuing its bonds for the purpose of erecting a public building to be used for a courthouse and jail; and whereas said election will be held on the 29th day of June, a. d. 1909; and whereas, if the bond issue upon said election prevails and carries, the said county of Foster will erect such public building aforesaid; and whereas the citizens of Carrington propose in the event that public building is erected to furnish and deliver to said county of Foster a suitable site for such public building, the same to be selected by the said board of county commissioners, provided, however, that said site shall not exceed in value the sum of $3,000 and provided, further, that fhe said board of county commissioners may, in their judgment, decide that a new location for such public building other than the one now used for the old courthouse building be used;

Now therefore, if the said bond issue carries at this coming election aforesaid, and the said county of Foster proceeds to erect the public building aforesaid, and for that purpose decides to choose a new site as aforesaid, then this obligation shall be in full force and effect and binding upon the signers hereto; otherwise this obligation is to be void.

Provided always that tbe liability under this obligation shall not exceed in any event the sum of $3,000.

In witness whereof, we have hereunto set- our hands and seals this -day of June, a. d. 1909.

This bond was signed and acknowledged by the twenty-seven named in the body of the instrument. The plaintiff seeks to recover on the bond as for money due and unpaid. The court found “that the plaintiff has fulfilled each and every of the conditions by it to be performed under and by virtue of the terms of said undertaking, and by reason thereof the said defendants have become indebted to the county of Poster. . . . That there is now due and owing from the defendants to the county, under the terms of said undertaking and obligation, the sum of $884 and interest.” The specifications of error taken to these findings are “that there is no evidence that any breach ever occurred in the contract or bond sued upon. That there is no evidence that demand of performance on the part of the defendants or their principal was ever made, or that an opportunity was given to them to perform their contract. That the evidence shows that the plaintiff through its county commissioners, before the definite selection of the site for the buildings was made, obtained optional contracts for the site, and thereby made it impossible for these defendants or their principal to comply with the conditions of the bond sued upon.” The evidence consists wholly of a written stipulation of fact, carefully prepared and signed by the attorneys for both parties. Therefrom it appears beyond question that the specification of error states the fact in its recitation that the defendants or obligors on the undertaking were never called upon or requested to procure title in the county to any site, and thus furnish to the county a site chosen as suitable by its board of commissioners. Instead, the board chose a site consisting of various contiguous tracts owned by six different owners exclusive of the city of Carrington, which city held title to or an easement in the streets segregating the site as entirety as selected. The county by its commissioners thus secured title to the site by conveyances from six different owners, and then vacated intervening streets and alleys, procuring a satisfactory site. In so doing it paid $3,47 5 for the different tracts, some of which contained improvements which the county sold, reducing the net cost of the tracts $530, or to $2,945. It seems that eighteen .of the signers of this undertaking contributed $110 each to the county. These nine defendants refused to pay, and this suit was brought. The above outlines the case.

The county in its brief summarizes its contention to be: “The interpretation of this contract is the vital point in this action; . . . and that such contract or bond is not to be construed as a contract guarantying the performance of certain acts of citizens of Carrington, but is a contract for the payment of the value of a new site, to be selected by the county commissioners of the county of Foster, in the. event of the carrying of the bonding election; . . . and that no other construction of this contract could give it validity at its inception.” Appellants construe the undertaking as one wherein the signers became sureties that the citizens of Carrington (the bond issue carrying, and selection having been made by the board of a suitable site) would furnish and deliver, free of charge, such site to the county, providing it did not exceed in cost more than $3,000. Both sides concede the question to be but one of the interpretation of this instrument. The county claims it to be a subscription of moneys in the sum of $3,000 to be applied on the expense of purchase of a site. Defendants insist that it should be construed as a contract of suretyship, wherein a site is to be furnished after its selection and upon demand, in default of which defendants would be responsible in the penal sum of the cost thereof, not to exceed $3,000.

The county contends that the portion of the instrument wherein a recitation is had of the election having been called to vote on the bonding question, and the necessity for building of a courthouse in case it would carry, and “whereas the citizens of Carrington propose in the event that if such public building is erected to furnish and deliver to said county of Foster a suitable site for such public building, the same to be selected by the said board of county commissioners, providing, however, that said site should not exceed in value of $3,000” — are merely preliminary recitations, and are not a part of the conditions of the bond. Or in other words, the'county contends that these signers have bound themselves to make payment in the event of the bonds’ carrying. Under its contention, the moment the canvass of the votes cast disclosed that tbe bonding proposition bad carried, a liability arose, not that tbe citizens of Carrington would furnish a suitable and approved site, but that tbe signers would contribute to tbe extent of $3,000 toward tbe cost of sucb a site as tbe commissioners should select and purchase.-

The construction given this undertaking by tbe appellants is correct beyond question. Suppose that tbe citizens of Carrington other than tbe signers of tbe undertaking bad furnished and delivered this site to tbe county, and it bad been accepted and built upon, could these defendants be held liable on tbe.bond as for a money subscription? Unquestionably not, unless it is also held that this is a subscription of moneys not limited in use to reimburse for tbe expense of tbe county in procuring a new site. And to so construe it as a $3,000 contribution ignores tbe purpose as well as tbe penal nature of tbe obligation. It cannot be contended that tbe instrument does not purport to reimburse for tbe expense of or else provide for a site free of expense to tbe county. Sucb being tbe case, tbe other recitations specified in tbe bond itself as conditions must be considered, and, being considered, must be regarded as conditions, instead of mere surplusage. If tbe recitations as to purpose and application of tbe fund be thus conditions of tbe bond, why not tbe portion providing that defendants may on demand exonerate themselves by furnishing not money, but, instead, tbe chosen site, and thus relieve themselves from any necessity of providing tbe county with a purchasing fund for it to apply in buying a site. Tbe contract is one of suretyship in form, in which tbe signers obligated themselves that a suitable site would be furnished tbe county by them after tbe board bad selected said site, leaving tbe location of it to be determined by tbe body having tbe power of choice. It is undisputed that tbe board did not so interpret it. Instead, it proceeded upon tbe theory advanced, that the instrament amounted to a subscription of moneys. Accordingly no demand was made upon tbe obligors to furnish title to tbe tract selected after it bad been chosen. In purchasing direct from tbe owners, tbe county rendered performance of tbe contract by tbe sureties impossible, and thereby discharged them.

It is unnecessary to discuss other questions raised in tbe briefs. Tbe judgment appealed from is ordered vacated, and a judgment of dismissal directed to be entered instead. Appellants will recover costs on trial and on appeal.