
    The Commissioners of the County of Clermont v. Samuel Robb and James Ferguson.
    Appeal lies to the court of common pleas from the decision of the county commissioners, on a contract to erect a bridge.
    “When, upon appeal, the court order money to be paid, that order must be directed to the auditor, not to the commissioners.
    Question, whether the terms of a contract are dependent or independent, to be determined upon evidence, showing the contract and the intention of the-parties.
    This is a certiorari to the court of common pleas for the county of Clermont. It appears from the record that the commissioners of that county, and Robb and Ferguson, on December 8, 1829, agreed that Robb and Ferguson should find the materials for, and construct a bridge across the east fork of the Little Miami river, at Batavia, in that county, according to a plan delivered to them by the commissioners; that the bridge should be completed in a workmanlike manner, by December 25, 1830, for which the commissioners agreed to pay them twenty-eight hundred and thirty-three dollars, in three equal installments; the first, on the first Monday of March, 1830; the second, on the first Monday of June next after, and the third, on the completion of the bridge, on December 25, 1830. Robb and Ferguson, at the time the contract was made, gave a bond,.with security, to the commissioners to perform it. The construction of the bridge was publicly let to the lowest bidder,; Robb and Ferguson took it ás the ^lowest bidders. The commissioners paid Robb and Ferguson the first and second installments, and a small part of the third. Robb and Ferguson completed the bridge, as they alleged, according to their contract, and, at the instance of the commissioners, furnished some materials and did some work on the bridge not within the contract, after which, and after December 25, 1830, the commissioners met to examine the bridge and to receive and determine the account of Robb and Ferguson for constructing it. When the commissioners had so met, Robb and Ferguson presented to them their account for the balance of the third installment, and for the additional materials and work, amounting together to more than nine hundred dollars, which the commissioners refused to allow ; from this - decision of the commissioners, Robb and Ferguson appealed to the court of common pleas for that county, and gave the notice and bail required by the statute to perfect their appeal.
    At the April term of the court of common pleas, 1830, the next term after the appeal was taken, the cause was heard by the court, and the court allowed the account of Robb and Ferguson for the balance of the third installment and for the additional materials and work together (nine hundred and sixty-three dollars and sixty-five cents), and ordered that the commissioners should, within twenty days, on the demand of Robb and Ferguson, deliver to them an order drawn on the county treasurer in their favor for that sum. On the trial, the commissioners moved the court to dismiss the appeal because the cause was not appealable, which was overruled.
    The court also determined that the agreement of the commissioners to pay the third installment was not dependent on the completion of the bridge according to the contract, but an independent agreement, and, without other evidence than the contract, ordered the balance unpaid on the third installment to be paid. To these opinions of the court the commissioners excepted, and made the contract a part of their bill. To reverse these proceedings this writ is brought. It is submitted without argument.
    Fishback, for commissioners.
    *T. Morris, for Robb and Ferguson.
   Collet, J.,

delivered the opinion of the court:

The act establishing boards of commissioners, 22 Ohio L. 263, and the act defining the duty of county auditors, 22 Ohio L. 267, were in force when these proceedings were had. By section 12 of this last-named act it is made the duty of the county auditor to allow all demands justly chargeable to the county, except such as are by law to be allowed by the commissioners or the courts of the county, and to draw orders on the county treasurer for all sums allowed by himself, or the commissioners, or the courts. By section 7 of the first-mentioned act, the commissioners are authorized to contract for the building or repairing of bridges, and the auditor is forbid to draw on the county treasurer for the payment for anything done to a bridge under such contracts until the commissioner’s order him to do so. Section 21 of this act provides, That if any person or persons shall conceive him or themselves injured by the decision of the commissioners in any case, such person or persons may, within fifteen days, appeal to the next court of common pleas,” etc., and the said court shall, at their next session, hear and determine the same.” By section 7 the •commissioners are required to decide on the claims of persons who have built a bridge under a contract with them; and by section 21 of the same act, an appeal is given in all cases from the decision of the commissioners. We can see no reason to doubt the right of Eobb and Ferguson to take this ajjpeal.

The court erred in the manner in which they made the order for payment. The auditor is required to draw orders on the county treasurer for all sums allowed by the court; after the appeal, the right to determine on the claim of Eobb and Ferguson was vested in the court. When they determined, it became the duty of the auditor to draw on the county treasurer for the sum the court allowed to be due from the county. The order of the •court, therefore, should have been to the auditor, and not to the commissioners.

*As to the opinion of the court that the agreement of the commissioners to pay the third installment was independent, and not dependent on the completion of the bridge, and in consequence adjudging them to pay that installment without other evidence than the agreement, it seems to us that there is error here. Whether an agreement or covenant is dependent or independent is determined by ascertaining from the contract or contracts the intention of the parties; there is nothing technical in it. 1 Wheat. Selw. 94,388; 1 Ohio, 330. The parties have a right to make their agreements dependent or independent, and as they make them the courts are bound to enforce them. Our constitutions forbid •the legislature to vary or impair the contracts of parties. In the case of Cunningham v. Morrell, 10 L. R. 205, the court say, “A mechanic generally stands in need of advances from time to time in aiding him to procure materials to carry on his work, and the employer, if prudent, will generally reserve a considerable payment until the work be completed, and to depend on its completion. But if all these payments can be demanded without performance, merely because a part of them-were to be made as the work advanced, it would be making the intention of the parties subservient to technical rules.” In this case the commissioners, in December, 1829, proposed to have a bridge of a particular description built by December 25, 1830; that they would advance one-third of the price by the first Monday of March, as early as the bridge could be commenced ; one-third more on the first Monday of June, before there would probably be a stone laid toward the erection of the bridge. These two payments were to be made without regard to the progress of the work. The remaining third was to be on the completion of the work on December 25, 1830, the day on which the undertaker was, by the contract, to have it completed. Why say, they would pay on that day, on the completion of the bridge, if they intended to pay on that day if it were not completed ? The commissioners proposed to advance liberally to the undertaker; they did advance nearly two thousand dollars; they could not tell who would be undertaker until the bidding closed. To secure the county, they'wisely required of him, whoever he might be, bond *and security well and sufficiently to construct the bridge. They also prudently provided that one-third of the price should not be paid until the bridge was completed. The court should have heard the evidence as to the completion of the bridge, and the manner in which it was completed before they decided; and have allowed such sum on that hearing as would have been just between the parties, regarding the contract. Wheat. Selw. 58; Bull. N. P. 139.

The judgment must be reversed, and the cause remanded to the court of common pleas for further proceedings.  