O'Loughlin v. County of Jefferson

The opinion of the court was delivered, October 31st 1867, by Thompson, J. Parties to a contract for executing work, may provide in advance a mode for the adjustment of controversies which may arise out of it. They may establish, if they choose, other tribunals than those provided by law, provided they violate neither public morals nor public policy. Conventio vincet [65] legem, is a maxim on that subject, and it is illustrated by many cases, from Coon v. The Monongahela Nav. Co., 6 W. & S. 101, to the .present time. The principle is of importance in this case. There is a mode provided by the Act of 13th June 1836, Pamph. L. 555, for assessing damages for any deficiency in the erection of a county bridge. But, like any other remedy, it is in the power of the parties to modify it and adopt k different one, provided the public interests are equally well protected by the substitute. The A^o of Assembly contemplates, in cases where bridges are built for a county by contract, that the contract price is to be retained and paid after a view approving the bridge, or the balance in case of damages assessed according to the act. But in sparsely populated counties, bridges are not often built in this way, the contractor generally requiring to be paid, as his work progresses, and in this way the contract price is usually consumed or partly so by the time the work is competed. A substitute for the retention of the money would obviously be, to take security for the due and faithful performance of the contract. The public can be as well protected in this way as any other, and the contractor ought not to complain, nor his bail, after agreeing to and receiving the benefits of a contract which directly leads to a different mode of getting at the damages from that of the Act of Assembly. That was the course pursued here. No other could have availed the county, as the contract was made. Under the act it would have required the retention of the whole money ; but the contract as made, required payment as the work progressed until the bridge was supposed to be completed, when only $102.93 actually remained -unpaid. Retention of money was not relied on as security for the performance of this contract, but the bond now in suit. This was not authorized by the statute, says the plaintiff in error. True, nor is .it forbidden by it. It was a common law bond or stipulation, and not violative of any statute. Just such a bond was held to be obligatory, and the bail liable, in just such a case as this, cited by the defendant in error, of Long et al. v. The County of Franklin, 2 Rawle 154, and it conclusively rules this case on this prin ciple. The condition of the bond in this case could only be satisfied by that sort of execution of the contract which it guaranteed, and that could easily be determined by the requirements of the contract. To ascertain whether the condition was broken or not, was the object of the suit; and it was no reply to say that the damages should have been assessed by viewers under the act. No such thing was contemplated by the contract. It proceeded on a different principle, as already shown. To carry out the provisions of the act by viewers, the contract price should have been retained, which was not done, but the bond was substituted to meet the case of damages from deficient execution. [66] It could therefore only he satisfied by performance according to its condition ; and this is a sufficient answer to the ground taken that the act of the commissioners in receiving the bridge from the contractor and paying him the balance of the purchase-money, relieved the bail. No such act would have that effect, unless it had been so stipulated or the obligation actually lifted. While it was evidence on the question of performance, it would have been error to have allowed it any greater effect. In sustaining the action on the bond, the court was entirely right. The complaint of an unqualified answer to the plaintiff’s 1st point we think unfounded. It is clear that in affirming it without qualification, the court did not mean to instruct the jury that the defendants were liable for deficiencies traceable to the plan furnished by the commissioners. In answer to the plaintiff’s 2d point the learned judge expressly charged, that “ the defendant O’Loughlin was not responsible for any defect in the plan of the bridge.” The words used on this point, viz., “ the manner or theory on which the work was done,” were evidently used as synonymous, meaning the same thing, namely, the manner ; for this the contractor was, expressly liable by the contract. For the theory on which the bridge was built he was not, and so the court said. This exception is not sustained; and, seeing no error in the record, the judgment is affirmed.