Williams v. Colbert County

STONE, C. J. — At some time before May 11, 1880, O. H. P. Williams furnished to the Court of County Commissioners of Colbert county specifications for building a bridge across Buzzard Roost creek, in said county. The paper containing those specifications was produced and proved to be the true paper, on the trial of this case. On May 11, 1880, the Court of County Commissioners in session, “Resolved that the specifications furnished by O. H. P. Williams for the bridge over Buzzard Roost creek, on the Cherokee and Pleasant Site road, be adopted, and that the building of said bridge be let out at the lowest bidder on the lltli day of June, 1880, and that due notice of the letting of said bridge be given by publication for three successive weeks in the Tuscumbia Democrat, notifying bridge builders of the letting of said bridge; and that the members of this court attend at Cherokee on said 11th day of June, 1880, and superintend the letting of said bridge, and contracting for the same in person.” On July 12, 1880, the Court of County Commissioners made and entered the following order : “Ordered that O. H. P. Williams be allowed the sum of $260.53 for building a bridge over Buzzard Roost creek, near William Hamilton’s, to be paid for as the law directs. It is further ordered that the judge and chairman of this court withhold and not issue the above allowance, until the committee report said bridge completed according to the contract and specifications.” On the margin of the book in which the foregoing order was entered, was the following : “No. 358. ■ Issued August 5, 1880. A. W. Ligón, Judge.” On July 13, 1880, the following order was made and entered by the court: “Ordered that James A. Barton, W. M. Turner and J. W. Dean be, and they are hereby appointed a committee to superintend the building of the bridge over Buzzard Roost creek, near William Hamilton’s, and see that said bridge is built according to contract and [219] specifications, and when thus completed, to report the same to this court.” In the office of the Judge of Probate, indorsed, “Piled August 5, 1880. A. W. Ligón, Judge,” was found the report of the committee, of which the following is a copy : “We, the undersigned committee, appointed to inspect the bridge recently built over Buzzard Boost creek, near William Hamilton’s, by O. H. P. Williams, in the absence of any contract or specifications, would respectfully state, the bridge is built of good, heart timber, and in good workmanlike order. Cherokee, Ala., August 5, 1880. Bespectfully submitted, J. A. Barton, W. M. Turner, J. W. Lean.” Testimony was offered, tending to show that thorough search had been made in the office of the judge of probate of Colbert county for records and papers pertaining to the letting out and building of said bridge, and that those copied above were all that could be found. There was testimony that some of the papers relating thereto had never been recorded. O. H. P. Williams was introduced as a witness for plaintiff, and it was proposed to prove by him “that in the summer of 1880, he built the bridge, by the fall of which plaintiff was injured, and for which injury this suit was brought; that he built said bridge by and under a contract he made with the Commissioners Court of said county; that said bridge was a public bridge ; that the contract for building it was let out by the commissioners of said county to the lowest bidder on the 11th day of June, 1880, at Cherokee in said county; that said contract was awarded to witness ; that his bid therefor was in writing, and delivered to said commissioners ; that it was accepted by said commissioners, and so announced by them publicly, on the day and at the time he put in said bid; that under said bid * * he built said bridge for defendant - that it was a public bridge, on a public road in said county, leading from Cherokee to Pleasant Site; that the bridge was built by him over Buzzard Boost creek in said county; that he built said bridge in accordance with the specifications he had theretofore furnished said commissioners; that said Commissioners’ Court accepted said bridge after its completion, and on the 4th day of August, 1880, the defendant, paid him two hundred and sixty 58-100 dollars for building said bridge; * * * that he gave no guaranty, by bond or otherwise, that said bridge should continue safe for the passage for travellers and other persons for a stipulated time; that no such bond or guaranty was required of him, and he gave none.” The testimony of this witness, if believed, would have [220] shown that be made :i bid in writing for the contract to build the bridge. There was sufficient proof of search for that bid where it ought to have been found — where the law presumes it would have been kept — to let in secondary evidence of its contents. That such secondary evidence is admissible, is among the clearest principles of evidence. 1 Greenl. Ev., § 509; Derritt v. Alexander, 25 Ala. 265; Smith v. Wert, 64 Ala. 34. This fact being shown, the certified orders, copied above, prove tlie bid was accepted and the contract performed, tlie bridge received and ordered to be paid for out of the county’s funds. It is thus shown that the bridge was erected by contract with the county commissioners, and no guaranty taken that it should continue safe for passage. — Code of 1876, § 1692. What we have said is sufficient to show the Circuit Court erred in excluding the testimony referred to above. In truth, we are not able to affirm any of the testimony offered was illegal. The judgment of the Circuit Court is reversed, and the cause remanded.