Board of Drainage Commissioners v. Williams

Jenkins, P. J. (After stating the foregoing facts.) The Board of Drainage Commissioners of Kettle Creek District, one of the defendants below, being a corporation chartered under and by virtue of an act of the General Assembly (Ga. L. 1911, p. 108), had the power under that act to enter into a contract for the drainage of the said district; and the contract was not in any wise invalid by reason of the fact that there had been no actual sale of drainage bonds; assessments for such improvements having been previously made to an amount exceeding the total amount of the drainage contract. Such assessments were in [733] themselves a sufficient asset with which to pay off the drainage contract. Mayor &c. of Hogansvüle v. Planters Bank, 147 Ga. 346 (94 S. E. 310); Monk v. City of Moultrie, 145 Ga. 843 (90 S. E. 71); Tate v. City of Elberton, 136 Ga. 301 (71 S. E. 420); Town of Whigham v. Gulf Refining Co., 20 Ga. App. 427 (93 S. E. 238); 19 Corpus Juris, 687, 723. Where the total liability under the drainage contract was within the total amount of such assessments, the contract was not thereafter rendered invalid by reason of the fact that such assessments were not collected or enforced, or by reason of the fact that the full par value of all the drainage bonds sold did not come into the district treasury, as the act of 1911, supra, requires, or by reason of the fact that the available assets of the drainage district have been disbursed legally, or dissipated illegally. See McCord v. City of Jackson, 135 Ga. 176, 177 (5) (69 S. E. 23). Such subsequent conduct can not in any manner influence the validity of the prior valid contract. "Under the facts of the case as stated above, it is not illegal for such board or district to execute and deliver its promissory note or notes for the amount of such matured payments; and such notes, thus given, are valid and collectible; and are not violative of any provision of the act of 1911, supra, or of any provisions of the general laws of the State, governing the making of obligations. Monk v. City of Moultrie, supra; Almand v. Pate, 143 Ga. 711 (85 S. E. 909); Tate v. City of Elberton, Mayor &c. of Hogansville v. Planters Banh, Town of Whigham v. Gulf Refining Co., supra. And it was not illegal, under the circumstances outlined, to include-in the notes an obligation of the district to pay interest thereon. See Civil Code (1910), § 3434; Hartley v. Nash, 157 Ga. 402 (121 S. E. 295). Where, under the circumstances stated, certain persons who are commissioners of a drainage district, enter into a collateral agreement with the contractor who has such work in hand and uncompleted, by the terms of which such commissioners agree “to be personally responsible for the money of the district until money can be secured by the issuing and sale of bonds of said district or until the district secures money from other sources,”,such collateral agreement is based upon a condition subsequent; and upon the fulfilment of the condition subsequent all liability under such agreement, ipso facto, ceases, There being in the record no contention [734] that money was derived from any source other than from the sale of bonds, the ruling here made will be affected by that fact alone as'a fulfilment of the condition subsequent. See Civil Code (1910), § 4224. Accordingly, such collateral agreement remained valid and of full force and effect unless such defendant commissioners, having the burden of proof of that fact, showed that the bonds of the district had in fact been issued and sold as required by the agreement. See Civil Code (1910), § 4301; Reid v. Fain, 134 Ga. 134 (68 S. E. 97). The act of 1911, supra, provides that such drainage bonds must not be sold at less than par. Until such a valid sale of the bonds is shown to have been made, such individual commissioners have not carried the burden, and have not shown the fulfilment of such condition subsequent, and are, therefore, still bound upon their agreement. While it was shown that the bonds, to the aggregate amount of $40,000, par value, were issued and sold, there was testimony from one or more of such commissioners to the effect that there was a commission or expense in the selling, or, as one of the commissioners expressed it, a “rake-off,” of something like $3,000, and that the most that was actually realized from the sale of such bonds was about $37,000. “If the commissioners had agreed in good faith to pay a commission to effect a sale of the bonds, such agreement would have been illegal, as under the "law it was their duty to sell the bonds for not less than their full face value; and the commissioners did not receive the par or face value thereof.” Board of Drainage Comm’rs v. Arnold, 156 Ga. 733, 735 (120 S. E. 310). Since, under the ruling in the case last cited, the sale of the bonds by the commissioners was “null and void,” the condition subsequent by which the personal liability of the commissioners might have been relieved has not been met; and since no valid “sale of bonds” as contemplated by the agreement has been shown, their liability continues to exist under the terms of their obligation, and until the claim of the obligee has been satisfied. See also Aven v. Beckom, 11 Ga. 1, 6; 22 R. C. L. 475; 29 Cyc. 1446. Where it is provided in the contract between a drainage district and the contractor, covering certain drainage construction, that such work shall be under the supervision o'f the engineer of the district, and that he shall have the power to accept or reject the work, or any part thereof, the acceptance and approval of such [735] work by such engineer, when made in good faith and in the absence of fraud, accident, or mistake, is binding upon the drainage district. Green v. Jackson, 66 Ga. 250, 251 (2); 9 Corpus Juris, 767, 826, 777, 801. Especially is the drainage district bound when it accepts such performance and executes and thereafter delivers to the contractor the note or notes of the district in settlement of such work. Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496); and see Harder v. Carter, 97 Ga. 273 (23 S. E. 82); American Car Co. v. Atlanta St. Ry. Co., 100 Ga. 254 (28 S. E. 40); Edison General Electric Co. v. Blount, 96 Ga. 272 (23 S. E. 306); Stimpson Computing Scale Co. v. Taylor, 4 Ga. App. 567 (2) (61 S. E. 1131); Unitype Co. v. Skelton, 11 Ga. App. 742 (76 S. E. 80). Moreover, the jury were authorized to find from the evidence, as a matter of fact, that the terms of the contract had been fully complied with. Where such a contract provides that the work shall be done by the contractor in accordance with certain details and specifications, mutually agreed upon, if the work is done in compliance with the terms of the agreement, the contractor is not liable for the results which may flow from the work having been so performed. Cannon v. Hunt, 116 Ga. 452 (42 S. E. 734); Porter v. Wilder, 62 Ga. 520 (2). Defendants complain that in certain excerpts from the charge to the jury the court misstated, the issues of the ease and confused the jury. It is true that there were slight verbal inaccuracies in certain excerpts from the charge; but most, if not all, of these inaccuracies occurred in that part of the charge which was devoted to a reading or statement of the contents of the pleadings; and inasmuch as the pleadings were out with the jury, and as they did not really tend to mislead, they would not justify setting the verdict and judgment aside; especially so since, under the foregoing rulings, a verdict for the plaintiff was practically, if indeed not absolutely, demanded. In view of the principles stated above, we do not think that there was any error in overruling the demurrers to the petition, or in the charge of the court; and there being sufficient evidence to support the verdict, which has been approved by the trial court, we find no error in its overruling of the motion for new trial. Judgment affirmed. Stephens and Bell, JJ., concur.