
    *Carroll County v. Collier.
    June Term, 1872,
    Wytheville.
    Absent, Moncdre, P.
    i. Contracts—Assumpsit—Declaration.—In assumpsit by the contractor against a county fqr the price contracted to be paid for building a jail, it is not necessary to set out the dimensions or a description of the building in the declaration,
    a Same—Same—Same—Defective Counts.—In such a case, the contract set out in the count fixes a time within which the jail is to be completed, but there is no averment that it was completed within the time. The count is defective.
    3. Same —Same—Same—Variance.—The declaration states that the county court appointed three commissioners, naming them, to let out the building of the jail; in the order of the County court offered in evidence by the plaintiff, only two of them are named. This is no material variance, and the order may be admitted as evidence.
    4. Same—Same—Special Pleas.—In such a case the defendant pleads specially, that the building was not completed in time, and that the material used and the work was defective, so that it is unfit for use as a jail; and the plaintiff takes issue on this plea. Upon the trial the defendant offers a witness to sustain the defense, when the plaintiff objects to the evidence, and offers in evidence an order of the court, showing that the court had appointed commissioners to examine the building, and upon their report, that it had been done according to contract, had received it. Held;
    1. Same—Same—Same—Estoppel.—The plaintiff having taken issue upon the plea, the order could not operate as an estoppel when offered in evidence, even if it would have been such if set up by replication to the plea, or if the trial had been upon the general issue.
    2, Same—Same—Same—Same.—The order was not an estoppel, it not being a judgment, and the report of the commissioners not being an award.
    This was an action of assumpsit in the Circuit court of Carroll county, brought in October 1866, by Shadrack Collier against Carroll county, to recover the amount ^contracted to be paid to him for building a jail for the county.
    The declaration contained five counts, the first three the common counts in assumpsit. The fourth count sets out that heretofore, to wit: on the-day of-in consideration that the plaintiff, at the special request of the defendant, would build for the defendant a jail, according to specifications then and there furnished and shown to the plaintiff by the defendant, furnishing, without cost or charge to the defendant, all material of every kind, of suitable and proper character, and would finish the same by the 1st day of December 1861, the said defendant undertook, and then and there promised the plaintiff, to pay him the sum of $2,975, and to give to the plaintiff the privilege of using the material of the old jail of the said Carroll county; the said sum of $2,975 to be levied at the July terms of the County court of Carroll county, in - the years 1861 and 1862, to be paid to the plaintiff as follows, to wit: $1,487.50 on the 1st of December 1861, and $1,487.50 on the 1st of December 1862. And he avers that he did, afterwards on the--- day of-, build and erect for the defendant a jail, according to the specifications furnished the plaintiff by the defendant, the plaintiff furnishing all material of every kind for said jail, of suitable kind and character. Of all of which the defendant had notice.
    The fifth counts sets out that the defendant, by an order of the County court of Carroll county, did authorize and appoint Ira B. Coltrane, R. P. Cochran and James S. Tipton, commissioners for and on behalf of said defendant, to let1 out the building of a new jail for the defendant to the lowest bidder, giving to the undertaker of the work the privilege of using the material of the old jail, the value of which said materials was to be taken into consideration by the bidder; and the payment of the money for the building of said jail was by said order directed to be levied in two equal levies, the *first to be made at the June term, 1861, of the County court of Carroll county, and the second to be made at the June term, 1862, of said court; and the sheriff was to have until the 1st day of December of each year to collect said levies, at which said 1st days of December 1861 and 1862, the sums to be levied as aforesaid should be due and payable to the contractor of said work. And the plaintiff then avers that the said commissioners did proceed, in pursuance of said order, to let out to the lowest bidder the building of said jail, according to the terms of said order, and the specifications then and there shown; that the plaintiff, being the lowest bidder, was awarded by the commissioners the building, upon the terms of said order and according to said specifications, at the price of $2,975, to be levied and due as aforesaid. And the defendant, in consideration that the plaintiff would build said jail in accordance, &c., promised to pay to the plaintiff the said sum of $2,975, in two equal instalments as aforesaid, and the privilege of using the material of the old jail as aforesaid. And plaintiff says, that in pursuance of said agreement so made with the defendant, and confiding, &c., &c., the plaintiff after-wards, to wit: on the--day of---■, did build a jail for said defendant, according to the terms of said order of said County court, and said specifications, &c., furnishing all material of every kind, of suitable kind and character, of which the defendant had notice. Nevertheless, &c., damages, $10,000.
    At the March term 1867, the defendant appeared and demurred to the whole declaration, and each count thereof, and the plaintiff joined in the demurrer; which was overruled by the court. The defendant then pleaded “non assumpsit” and “payment,” and filed an account of offsets, and also two special pleas. The first, that if the plaintiff had been damnified by reason of anything stated in his declarations, he had been damnified of his ‘own wrong; and the second is, that the plaintiff did not perform and fulfill the said supposed contract in the declaration mentioned, in this, that he did not build the jail by the first of December 1861, or at any time since; nor did he build the same of suitable materials; nor did he furnish the same with locks, &c., according to the specifications; and in this, that the whole was performed and done unskilfully, negligently and carelessly, and became and is of no use or value to the defendant. To these pleas the plaintiff replied generally ; and issues were joined thereon.
    Upon the trial of the case, the plaintiff offered in evidence an order of the County court of Carroll, made January 7th, 1861, appointing Ira B. Coltrane and Robert P. Cochran commissioners to let out the building of a jail for the county; which was objected to by the defendant, on the ground of a variance between the order and the declaration, in the names of the commissioners. But no evidence having been introduced, except an order of the County court made December 3d, 1860, appointing three commissioners to receive plans and specifications for a new jail for the county, to be submitted to the court at its next term, on the motion of the plaintiff he was allowed to amend his declaration by striking out the name of James S. Tipton. To which opinion of the court the defendant excepted.
    In the progress of the cause the defendant introduced a witness, James M. Dawson, and proposed to prove by him that the jail of said county was not completed according to contract. To the introduction of this evidence the plaintiff objected, on the ground that the defendant was concluded from raising the question under the issues in this cause, whether said jail was completed according to contract, by an order of the County court of Carroll, entered on the 4th of June 1866. This order says James Early, James H. Givers and R. P. Cochran, who were at the last term of this court appointed commissioners *to examine the new jail of this county and report whether or not the same had been completed according to contract, this day returned their report, from which it appears that the same has been fully completed according to contract, which is received, and ordered to be filed among the papers relating to the public lot and buildings of the county. The court doth therefore receive the said jail as and for the jail of this county, the same having been completed in the manner required by law.
    The court sustained the objection, and excluded the evidence; and the defendant again excepted.
    There are in the record two papers, marked Exceptions 3 and 4, but not signed by the judge; and there is another paper, signed by him, in which he gives a statement of the evidence and his reasons for not signing said bills. These papers are sufficiently stated by Judge Staples in his opinion.
    The jury found a verdict for the plaintiff for $2,975, with interest, subject to a credit for $743.75, as paid by a levy made in 1866. And Carroll county thereupon applied to a judge of the District court at Abingdon for a supersedeas; which was allowed.
    Tipton, for the appellant.
    Walker, for the appellee.
    
      
      Special Pleas—Estoppel.—“Matter of estoppel may be relied on in evidence by the plaintiff when the only defence is the general issue, for the reason that the estoppel in such case cannot be pleaded. But when the matter to which the estoppel applies is specially pleaded, then the estoppel must be specially replied or it cannot avail. See cases cited in 7 Bob. Prac. 923 et sea. ; Davis v. Thomas, 5 Leigh 1; Carroll County v. Collier, 22 Gratt. p. 309.” Per curiam, in Hayes v. Va. Mutual Protective Ass’n, 76 Va. 231. See also, Despard v. County of Pleasants, 23 W. Va. 324; Long v. Campbell, 37 W. Va. 665, 17 S. E. Rep. 197.
    
   STAPBES, J.

This is an action of assumpsit against the county of Carroll. It was instituted to recover the amount claimed to be due the plaintiff upon a contract for the erection of a jail. The defendant demurred to the declaration and to each count; but his demurrer was overruled. The question, therefore, first to be considered, is the sufficiency of the declaration. It is insisted the plaintiff should not only aver he had built a jail, but he ought to show how he had built it, the nature, qualities and dimensions of the building erected, that the court might determine whether it constituted such a jail as the law requires. *The law does not prescribe any specific plan for county jails, but confides the whole subject to the wisdom and discretion of the county authorities. Whether a county can avoid its liability to a contractor who has fully complied with the terms of his contract, by showing that the building possesses none of the requisites of a county jail, it is unnecessary now to decide. It is to be presumed that the court properly discharged the duty devolving upon it, and in the contract with the plaintiff, contracted for a suitable building answering all the requirements and purposes of a public jail. It was, therefore, only necessary in this case, for the plaintiff to aver and prove the contract and its performance on his part, to entitle him to a recovery.

The second objection to the declaration is, that it states a contract for a county levy and the proceeds to be applied to plaintiff’s claim, but it is not averred that such levy was not made. It is true the declaration alleges that the County court agreed to provide for paying the plaintiff by two equal annual levies; and that the sheriff was to be permitted to collect these levies, and make the payments by certain specified periods. But it would not follow, that the plaintiff had thereby released the county from its obligation to him, and consented to look solely to the sheriff for the amount due him. On the contrary, it is expressly averred, that the defendant, in consideration that the plaintiff would build the jail according to the contract, promised to pay the several sums mentioned in the declaration. And it is further averred, that the defendant had wholly' failed and refused to make such payments. The breach charged is co-extensive with the legal import of the contract; and that is always sufficient.

I think, however, the objection to the fourth count is ' well taken. It avers that the plaintiff agreed to build a jail in_ accordance with certain specifications, and to complete it by á certain time. There is a sufficient averment *of a compliance with these specifications, but there is no averment of the completion of the building at the appointed time. As a general rule, a failure to complete the work at the day agreed, is no answer to the plaintiff’s action; unless, indeed, time is made the essence of the agreement. In the case of such failure, however, the plaintiff cannot recover upon the special contract, although the work has been accepted and enjoyed by the defendant; but he may recover upon the common counts, for the reasonable value of the benefit derived from the Work by the defendant. If the plaintiff seeks to recover upon the special contract, he must aver and prove the performance at the time and in the manner stipulated; or he may show an agreed modification in the terms of the contract, and a performance on his part in accordance with such modification. As the count in question is defective in failing to aver a performance at the appointed time, the demurrer to that count should have been sustained. The other counts are substantially good.

The question next to be considered arises upon defendant’s first bill of exceptions. It is sufficient to say that no substantial variance exists between the names of the commissioners set forth in the declaration and those contained in the order of the County court. It was, therefore, unnecessary to amend the declaration. The defendant could not have been prejudiced or surprised, either by the amendment or by the introduction of the order in evidence. It necessarily results from this view there was no valid reason for a postponement of the trial, or for remanding the case to the rules.

The fourth assignment of error is to the refusal of the court to admit the evidence set out in defendant’s second bill of exceptions. The defendant introduced a witness, and proposed to prove by him that the jail was not completed according to contract. To the introduction of this evidence the plaintiff objected, upon the ground that defendant was estopped to raise such question under *the issues in the cause. In support of this objection, he read an order of the County court, dated 4th June 1866. From which it appeared that the County court had appointed commissioners to examine the jail, and they reported it was fully completed according to contract. The court had thereupon received the jail, as and for the jail of the county, the same having been built and completed according to law. Upon an inspection of this order, the court sustained the objection, being of opinion the defendant was concluded from raising the question of a non-performance of the contract.

It is to be borne in mind that the defendant, in addition to the general issue, filed a special plea, averring that the plaintiff did not complete the jail by the 1st day of December 1861, the time stipulated; and also, averring that the work was unskilfully and negligently performed, and with improper and defective materials. The plaintiff did not demur to this plea, nor did he reply thé estoppel arising from the action of the County court, but took issue thereon. Now, if it appeared that the evidence offered by defendant had reference to the time of completing the building, we should hold it was rightly excluded. The defendant having received the jail without protest, will be thereby held to have waived his objections to the delay in its completion. But the evidence was not so restricted. It was also pertinent to that branch of the plea which raised the question of the defective execution of the work, and was clearly admissible in support of that issue. Had the defendant pleaded the general issue only, and under that issue offered the evidence in question, it would have been competent for the plaintiff to rely upon the estoppel in evidence also. And this upon the well settled principle that where there is no opportunity of pleading an estoppel, it is to be held conclusive when offered in evidence. But here the defendant pleaded the matter of defense specially, and thus afforded the plaintiff the *opportunit3' of replying the estoppel. Instead of pursuing this course, he takes issue upon ihe plea, and thus opens the door to a full investigation of the matters contained therein.

I have thus far considered the case as if the order of the County court constituted an estoppel. Is it, however, to be so regarded. The plaintiff, by his form of action, treats the contract not as a matter of record, but as resting in parol. The declaration is in assumpsit, and upon the general issue it devolved upon him to prove the construction of the work in strict compliance with the terms of the contract. This he might do by the testimony of witnesses, or he might rely upon the admission contained in the order of the County court. This order furnished evidence of a very strong and persuasive character, but it was not conclusive upon the question of such compliance.

The commissioners appointed to examine the building were not referees, nor was their report in the nature of an award between the parties. They were mere agents of the court, appointed for the purpose of ascertaining whether the building could be safely received, and the compensation paid the contractor. It is true the report was entered of record, but such entry did not render the inquiry or the acceptance a judicial determination of the fitness of the building. The justices were acting as a board of police for the countjr, in their ministerial, and not in their judicial capacity. In this case, as in a large majority of instances, the examination of the jail was made shortly after its completion, and before any defects in the material, or in the execution of the work, were discoverable. Under such circumstances, to hold that a county shall be compelled to pay the contract price for public buildings, no matter how defectively constructed, is to establish a rule that will place the public interests at the mercy of fraudulent or incompetent and unskilful contractors. In Jaege v. Bossieux, *15 Gratt. 83, by the terms of the contract, the work was to be valued and the price fixed by referees chosen by the parties. Upon the completion of the building, it was examined, valued and priced by the referees, and accepted by the owner. In an action for the price, it being claimed that the work was defectively executed, the award of the referees was relied on as an estoppel. Judge Lee, in alluding to the valuation made by the referees, said: “Such a valuation would, of necessity, be based upon the condition in which the work appeared at the time it should be made, and it could not have been intended to deprive the party of the right to compensation for material defects in the work, not discoverable at the time of the valuation. And as numerous and marked defects were subsequently disclosed, the award of the referees, as to the value of the work in its apparent condition at the time, should not be conclusive.” This reasoning is equally applicable to the present case, and warrants the introduction of evidence touching the character and value of the work performed by the plaintiff. I think the court erred in rejecting that evidence as set forth in defendant’s second bill of exceptions.

Another ground of error is the refusal of the court to give an instruction asked for by defendants set out in a paper marked bill of exceptions No. 3. This paper is not signed by the judge presiding at the trial, but reference is made to it in a bill of exceptions which is signed, and the reason for such refusal stated. I think the court did not err in refusing to give this instruction ; nor was there any error to the prejudice of the defendant in the instruction actually given in lieu of that asked for by the defendant. The plaintiff had no contract with the sheriff, nor was he under any obligation to pursue him; though he may have been authorized so to do under the statute. His contract was with the court, and to it he had the right to look for his compensation. It was the duty of the *justices not only to lay the levy, but to see that the proceeds were applied in payment of plaintiff’s debt. Neither the levy nor its collection b3r the sheriff, furnished any evidence of a payment to the plaintiff. If, in fact, such payment was made, it was easy to establish it by the testimony of the sheriff, the agent of the county and the officer of the court.

Complaint is also made of the refusal of the court to sign a paper appearing in the record as defendant’s bill of exceptions No. 4. There is nothing, however, in the record tending to show that such refusal was improper. In the absence of evidence establishing the contrary, an appellate court will always presume the action of the court below was warranted b3' the facts before it. In this case presumption is rendered conclusive by a statement of the presiding judge of what occurred at the trial, from which it does not appear that any such evidence was offered as is contained in this bill of exceptions. It is impossible to say that the court committed an error in refusing to sign the paper.

What remedy is afforded a party aggrieved by the refusal of a court to sign a proper bill of exceptions, has never been the subject of adjudication by this court. It is an important question, only to be settled upon deliberate consideration. As such decision is not called for in this case, we do not deem it proper or necessary to express any opinion upon the point. Tor the reasons stated, I am of opinion the judgment should be reversed, the verdict set aside and a new trial awarded, and upon such trial the cause to be proceeded in in accordance with the principles herein announced.

The other judges concurred in the opinion of Staples, J.

Judgment reversed.  