Ready v. Mayor of Tuskaloosa

ORMOND, J. The principal question in this cause is, the construction of the covenant- — the plaintiff in error contending that Sims, the surety, did not, by the covenant he entered into, warrant the work to stand for ten years. The interpretation of the covenant is to be gathered from the language employed by the parties, considered in connection with the subject matter of the contract. The corporation of Tuskaloosa, desiring to build a wall across a wash or gulley, so as to arrest its further progress, made proposals by a written specification, describing minutely the work to be done, the manner and the time within which it was to be done, and the price it was willing to pay for it. The work to [335] be left in a good condition at the end of ten years, and to be kept in repair during that time; the undertaker to give good security for the faithful performance of the contract. The work was undertaken by one Webster, who, jointly with the testator of the plaintiffs in error, executed a penal bond, the condition of which recites the contract entered into by Webster with the corporation, and refers to the specifications attached thereto, and proceeds — “Now, if the said John J. Webster shall do accordingly all matters and things, as stated in said specification alluded to, and faithfully do and perforin said undertaking or contract in the best workmanlike manner, and in the shortest practicable time, then this obligation to be void, otherwise,” &c. It is most undeniable that Webster was bound by this covenant to do and perform all things contained in the specification; that was in fact the contract between him and the corporation, although its most material provisions are repeated in the condition of the bond to which it is annexed, and of which it forms a part. Webster then undertook that the work should last for ten years from the time of its completion; and, in our opinion, the surety is bound to the same extent. The duration of the work was' the most important term of the contract, and for the faithful performance of the contract, surety was to be given as one of the conditions on which it was to be let. When, therefore, the measure of the liability of the principal is ascertained, that shows the extent of the liability of the surety. The argument of the counsel for the plaintiff in error, that the surety did not intend to be bound for the durability of the woi’k, is founded upon the language employed in the latter part of the condition — “Now, if the said John J. Webster shall,” &c., as indicating that the surety was only to be bound for the performance by W ebster of the particular matters there enumerated. This portion of the condition expressly provides that Webster shall do and perform all matters and things contained in said specification; and, although afterwards certain particulars are mentioned, which are included in the specification, by no fair rule of interpretation can this be understood as limiting the previous portion of the condition. The latter clause is not repugnant to, or inconsistent with, the former; but is merely superfluous. But if any doubt were created thereby, the specification which is in truth the contract, shows that surety was to be required for its per336 formalice; and it would be a strange rule of interpretation to permit amere inference, conceding it to be such, to overturn an express term of the contract, and thereby to defeat the very object in view in requiring surety to be given. The very converse is the true rule; doubtful and ambiguous terms should be so construed, if possible, as to give effect to the clearly expressed intention of the parties. Sims, the surety, being bound, therefore, to the same extent as the principal, the court correctly sustained the demurrers to the pleas, which are framed upon the contrary supposition. This contract was made with the Mayor and Aldermen of the town of Tuskaloosa; and subsequently, in 1836, the style of the corporation was changed to that of the Mayor and Aldermen of the city of Tuskaloosa. The action is brought by the city authorities by this latter name, and allege in the declaration that the bond was made to it by the name and style of the Mayor and Aldermen of the town of Tuskaloosa; and in our opinion this is sufficient. In the case of the Madison College v. Burke, at this term, we held, that a count upon a note made to the Trustees of the Manual Labor Institute of South Alabama, without connecting the Madison College with it, so as to show a legal title in the instrument declared on, was bad. In this case, that is done by the allegation that the bond was made to the corporation by the name in which it was given. The act of 1836, changing the corporate name, expressly reserves to the corporation all its rights, and renders it responsible for its obligations; and such would have been the law if no express provision to that effect had been made. [Corporation of Colchester v. Seaber, 3 Burr. 1866.] We think, therefore, the declaration was sufficient; and, for the same reason, the court did not err in its judgment upon the issue of mil tiel corporation. The alleged interference by the marshal of the corporation with the work, thereby, as contended, increasing the danger from freshets, cannot affect the corporation, unless it be shown that he acted by its direction. The master may be liable, civiliter, for the acts of his servant acting in the usual course of his master’s business; or where, whilst engaged in his master’s business, by his negligence, he causes an injury to another. [1 Black. Com. 429; Blackburn v. Baker, 1 Ala. Rep. 178.] Here, the act of the servant was wilful, and not in the prosecution of the business of [337] the corporation: the corporation is not, therefore, responsible for his acts, unless done by its command. " It remains only to consider the right of the defendant below to set up, by way of recoupment of damages, the omission of the corporation to pay the last instalment agreed to be paid on the completion of the work. It is certainly consonant to justice, that a party should be permitted, when sued for a breach of his contract, to reduce the' damages, by showing the injury he has sustained by the failure of the other party to comply with the contraction his part, instead of driving him to his cross action, thereby multiplying suits and increasing litigation without any corresponding' benefit. This principle has received the sanction of this court in Greene v. Linton, [7 Porter, 142,] in Hill v. Bishop, [2 Ala. 324,] and in Craddock v. Stewart’s adm’rs, [at this term.] The same doctrine is asserted by the supreme court of New York, in Batterman v. Pierce, [3 Hill, 171,] in an elaborate opinion, where the rule, and the reason on which it is founded, are stated with clearness and ability. We can perceive no reason why the rule should not apply in this case. The corporation has certainly not sustained the same amount of damage it would have done, if’ it had paid the full amount agreed to be paid for the work; the defendant should, therefore, be permitted to mitigate the damage by proof of this fact; and for the error of the court, in refusing to receive such testimony, and in charging the jury that it could not go in mitigation of the damage sustained by the corporation, the judgment must be reversed, and the cause remanded. [