
    William Greene et al. v. The State, for the use of Licking County.
    Contract for building a court-house in a workmanlike manner, recites that the county commissioners would superintend the work, such superintendence is not a matter precedent to the progress of the work. Nor does the appointment of a superintending agent, and the fact of his approbation, dispense with the obligation of the contract for executing the work.
    Error to the commou pleas of Licking. The defendant in error brought debt, in the common pleas, against Greene and six others. The declaration is in four counts, the third of which sets out the case fully as follows: That the defendants, on June 11, 1832, made their joint and several writing obligatory to the plaintiff, in the penal sum of $19,980, which was upon condition, reciting that said William Greene had, on that day, June 11, 1832, been declared by the commissioners of Licking county, contractor for the erection of a court-house and fire-proof offices, and that, on May 4,1832, the -commissioners adopted a plan therefor, which, with the drawings, was thereby referred to; and that the commissioners agreed to superintend the erection of said court-house; and if the said Greene should commence, carry on, and complete the said building at the-several *times and in the manner specified in the condition annexed to said plan, and in all respects according to said drawings, to the acceptance of said commissioners and their successors, then the bond to be void. The plan referred to in the condition is next set out, by which it was provided that the building should be commenced in April, 1833, and be put under cover in November, 1833; the stone work to be built of certain dimensions and materials specified, for the foundation; the walls above ground to be of cut stone, and range work, etc.; all the materials to be approved by the county commissioners or their superintendent; payment to be made as follows: $1,000, August 1, 1832; $2,000, Feb" ruary 15, 1833, etc. The declaration then avers the payment of the $1,000 and $2,000 to Greene at the days stipulated, and general performance by the commissioners ; general non-performance by Greene and special breaches, among others that the stone wall for the foundation was not built of proper materials, or in a workmanlike or proper manner, etc.
    Greene, and ail the other defendants, except Holmes, pleaded non est factum, and gave notice of special matter, upon which issue-was taken. Holmes pleaded specially as follows, after obtaining oyer of the bond and condition : 1. That the commissioners-did not superintend the erection of the court-house. 2. That Greene, in pursuance of said plan, did commence the said work on April 15, 1833, and after he had nearly completed the foundation and long before the time limited for finishing or putting the same under cover, the commissioners vacated his contract, and forbid him from further prosecuting the work. 3. Thát at the time the commissioners vacated the contract, Greene had been guilty of no default for want of attention or competent knowledge to carry on the work agreeably to contract, and all the materials and workmanship were approved by one James Bramble, who was appointed by said commissioners as superintendent and agent, expressly for the purpose of superintending the same. Those pleas-were specially demurred to.
    At April term, 1826, the issue upon the plea and notices of Greene, and the other defendants, except Holmes, came before a jury, and verdict was given, finding the deed that of the defendant, and assessing damag.es at $3,555. During the trial, a bill of exceptions, in substance following, was tendered by the defendants and sealed by the court:
    That on the trial it was proved by the defendants that James *Bramble, one of the commissioners, during the whole time from the making to the vacation of the contract, was, prior to the giving the contract to Greene, appointed by the commissioners to-superintend the building of the court-house and ofljices, but said appointment was subsequently erased from their journal by order of the commissioners; and that after Greene entered into his contract, and before the time for' the commencement of his work, Bramble (who lived in town) was directed or verbally appointed by the other two commissioners to attend to the erection of the building, and to give the said two commissioners notice to meet-whenever in his opinion the work was not properly progressing, and that Bramble did give the commissioners notice for that purpose, before the contract was rescinded. It was further proved by another witness for defendants, that he (the witness) was employed by Greene to put up the foundation, and to follow the directions of said Bramble in doing the same; that Bramble superintended the work until within a few days of the time the contract was vacated, and all the work was done in conformity with the advice and direction of Bramble, and Bramble approved the work as well as the materials. The commissioners vacated the contract before the foundation was completed, and the plaintiff claimed to recover in consequence alone of the badness of the-work done on the foundation.
    The court instructed the jury that inasmuch as no entry was-made, on the record of said commissioners, of the appointment of Bramble as superintendent, no act of his could bind the county of Licking, or prejudice the right of the plaintiff to recover.
    And further, that the condition in the bond providing for the-superintendence of the commissioners, was not a condition precedent; but that the plaintiff, if the jury should believe that defendants had not complied with their contract, was entitled to a verdict, even if the jury should believe that the commissioners-wholly,neglected to superintend or to appoint a superintendent.
    At May term, 1837, the court sustained the demurrers to Holmes'’ pleas, and assessed the plaintiff's damages to $3,789.63, the sum found by the jury on the issue with the other defendants, with» interest, and rendered judgment for $19,980, the penalty of the bond, with leave to take execution for the damages assessed, as the sum due in equity.
    J. R. Stanbery, for the plaintiff in error,
    urged three grounds for reversing the judgment:
    *1. That the superintendence of the work, by the commis.sioners, was a condition precedent, and their failure to superintend, .a bar to the suit.
    2. That the appointment of Bramble, even by parol, was binding upon the commissioners.
    3. His approval of the work and materials, binds the county, and excuses a performance according to the terms of the condition. He cited 2 Kent’s C. 232, 233 ; 7 Cranch, 299 ; 3 Wils. 530-540; 3 Chase’s Stat. 1829.
    Dille and H. Stanbery, for the county, insisted:
    1. That no agent or superintendent, appointed by the commissioners, could prejudice the public interest by the approval of in.sufficient work, not done according to the contract.
    2. That no agent, with such power, had been appointed in fact, .and no appointment of a superintendent in the mode shown in the bill of exceptions is valid.
    3. That no authority to receive any other work than that stipulated for in the contract was ever, in fact, given to the agent, Bramble. They cited 29 Ohio L. 267, 281, 315; 4 Bing. 283; Bro. Ab. Corp. 56 ; 1 Vent. 47; 2 Lutw. 1497 ; Vin. Ab. Corp. K, 7, 21; 3 Leon. 107.
   Judge G-rimke

delivered the opinion of the court:

We suppose the judgment on the demurrer to Holmes’ pleas, by the court of common pleas, correct. The first plea avers that the commissioners did not superintend the erection of the building. The word agree in this clause of the condition of the bond, “the commissioners agree to superintend the erection of said courthouse,” may have the effect, at first, of perplexing the judgment with regard to this part of the case. It may be supposed to create an express covenant between the parties, when, in reality, it is only a recital of something to be done for the benefit or advantage ■of the plaintiffs themselves. The second plea is defective for the •very reason which is assigned, that no state of facts is averred by which the court cau find that the vacation of the contract was unauthorized.

As to the third plea which sets up a defense that the materials and workmanship were approved by James Bramble, there is certainly great force in the objection that his appointment was-only by parol. The case of the Bank of Columbia v. Patterson, *7 Cranch, 299, shows that the rule which required the sanetion of the corporate seal to every act of a corporation has been very much relaxed ; perhaps the case of King v. Briggs, 3 P. Wms. 419, proves that the rule never existed in the universality with which it has been stated. The exceptions to the rule are summed up by Chief Justice Best, in the East London Water Works v. Bailey, 4 Bing. 283. But it is unnecessary to decide that point. The mere appointment of a person to superintend the work, could, not possibly dispense with the faithful execution of it, and compel the county to accept a building which was not erected in conformity with the agreement. If it did, what would be the meaning of the solemn covenant which the defendants entered into, securing the exact execution of the work, and even referring to the plan upon which the building was to be erected. All the substantial parts of the covenant would be superseded and put aside, by a matter which, even if it concerned the defendants, and not merely the plaintiff, was collateral to the principal object to be attained. If such were the consequence, we should have to look to the power of the county commissioners, and I apprehend we should find that they do not possess the authority to appoint an agent with the power which is claimed for him. They are mere agents of the public themselves, and the case would not form an-exception to the general rule that delegated power can not itself be delegated. But suffice it to say, that there is nothing in the appointment of a mere superintendent which can dispenso with, the faithful performance of the contract.

These reasons dispose of the questions arising also on the bill: of exceptions, and the judgment must be affirmed.  