Caldwell v. Harrison

COLLIER, C. J. The contract sought to be enforced in this case, may be thus stated, viz: on condition that certain persons would, as commissioners, make out the plan of a bridge, and let out the building thereof, pursuant to the plan, the defendant below promised to pay ten dollars to defray the cost of its erection, when the same was completed and reported by the commissioners to be finished according to the stipulation of the undertaker; Provided, all this was done by the first day of December, 1844. If a party depute several persons to represent him in some business transaction, such as the sale of property, &c. one of them cannot separately execute the authority. It has even been said thut the rule upon this point is so strict, that an authority to three, jointly and severally, cannot be executed by two, but one or all must act; unless the intent of the principal, as gathered from all the words employed, is sufficiently clear to control the rule of interpretation. But this doctrine is only said to be true in relation to private agencies ; for in public agencies an authority executed by a majority will be held obligatory, and a good execution of it. [See Story on Agency, 45, and note 4.] In the case before us, the authority conferred upon the commissioners to make the plan of a bridge, to contract for its execution, and to examine and re [759] port whether it was completed according to the plan, was quasi, a public agency ; and if the majority of them made the report contemplated by the authority and contract, their action was quite as obligatory upon those concerned, as if it had been the transaction of all the commissioners. But to make the defendant’s promise absolute, and to charge him on his subscription, it is necessary that the bridge should be completed according to contract, or at least so reported by a majority of the commissioners. We will not say that it should be both finished in that manner, and so reported to be, but certainly one fact or the other must be established ; for the defendant’s promise is made upon one or both of these conditions. The evidence showed that the bridge, which was in fact built, (when the additional work required by the commissioners was completed,) did not conform to the plan which they adopted, and according to which it was let out. And the testimony of all the witnesses but one, (who was a commissioner,) explicitly affirms that it was less valuable than the bridge undertaken to be erected by the plaintiff. The indorsement on the contract, that the bridge has been received by the commissioners, if sustained by extrinsic proof that the plaintiff had performed his undertaking, would perhaps be a sufficient report within the contemplation of the parties. But in opposition to the evidence, it cannot be intended from the mere fact that the commissioners received it, that it was finished pursuant to the plan. In cases in which the amount in controversy is as small as in the present, it has been said that the decision must be according to equity and good conscience. By this we are to understand, that the rules of strict law are not to be applied • when these interfere to prevent a recovery, or exclude a de-fence which a court of equity would sustain. But if the condition on which the defendant promised to pay, has not been substantially performed, he is not liable. The ruling of the circuit court is not supported by the evidence — its judgment is consequently reversed, and the cause remanded, if the defendant in error desires it.