This cause was before this Court at December Term, 1856, *Page 266 upon points to which the present considerations have no reference.
The petition, on which the order for a mandamus was founded, was filed at the September Term, 1855, and set out that a majority of the acting justices of the peace for the county of Harnett, made an order, authorising commissioners to let out the building of a court-house and jail, on the public square in Toomer, for the use of their county; that the said commissioners entered into a written contract to let the building of these houses to the plaintiff, and that by the said written contract, the said justices became bound to pay him $18,400, that is, $12,000 for the court-house, and $6,400 for the jail, both of which buildings, were to be executed according to specifications contained in the said contract; that the plaintiff was to furnish all the materials, and was to receive payments in monthly installments for material and work, reserving 10 per cent. as a guaranty for faithful performance on his part; that the petitioner commenced collecting materials, and had proceeded as diligently as practicable to perform his part of the contract; that on one month's compensation being due, plaintiff applied, through the commissioner with whom he contracted, for his pay, to the justices of the said county, sitting in the County Court of that county, which they refused to make, and that they utterly denied their obligation to pay the plaintiff any thing.
The prayer is "to grant unto him a writ of mandamus, commanding the justices aforesaid, to make immediate and ample provision for paying your petitioner according to the said contract, and that they be required also to pay to him whatever sums are now due, by levying all necessary taxes for the purpose thereof, and also whatever may hereafter become due, or show cause, if any they have, to the contrary."
Upon which petition an alternative mandamus was ordered to issue, commanding the said justices to pay the said money as prayed for, and to levy taxes for that purpose as prayed, or show cause to the contrary. *Page 267
The writ was issued according to the order, returnable to Spring Term, 1856.
The returns made by the justices of Harnett to this mandamus, and the exceptions thereto, were considered in this case, when formerly in this Court, and the opinion of the Court filed. See McCoy v. Justices ofHarnett, Jones' Rep. vol. 4, p. 180.
At _____ Term, 1857, of Harnett Superior Court, an amended petition was filed, setting out all the matter contained in the former petition, and alleging further, that at _____ Term, 1857, of Harnett County Court, a majority of the justices being present, in open court, the plaintiff again applied for what was due to him for work and materials, and requested them "to make a provision for payment of his entire contract as the same shall fall due," which they refused to do. The prayer of this amended petition is the same as that of the original.
At Spring Term, 1858, of Harnett Superior Court, a motion was made to quash the proceedings, which the Court, pro forma, refused, and the defendants appealed to this Court.
The contract between the plaintiff and defendants, is set out in a copy attached to plaintiff's amended petition. The portion thereof material to the questions considered by the Court, is as follows: "2nd. The work shall be executed under the constant supervision and direction of the parties of the second part and their superintendent, by which superintendent, the classification, measurement and calculation of the quantities, and the amount of the several kinds of work embraced in this contract shall be determined, and which superintendent shall have full power to reject or condemn all work and materials, which, in his opinion, does not conform to the spirit of this contract, and who shall also decide every question, which can or may arise between the parties to this agreement, relative to the execution thereof, and his decision shall be final and binding upon both parties." * * *
13. "In consideration of the full and faithful performance by the party of the first part, of the several stipulations herein contained, the aforesaid parties of the second part, hereby agrees to pay to the party of the first part, for the work *Page 268 herein specified, at the rate and price hereinafter mentioned, upon the monthly and final estimates certified by the superintendent of the parties of the second part, it being understood that the party of the second part will retain 10 per cent. of the said monthly estimate in their own hands, until the contract is completed, as security for the faithful performance of the same by the party of the first part." This contract was executed by the plaintiff and by Neil McKay and others, as commissioners appointed by the County Court of Harnett. A mandamus is a high prerogative writ, and is only granted where one has a special legal right which cannot be recovered by an ordinary action. The petitioner must show himself entitled to some specific right; Tucker v.Justices of Iredell, 1 Jones' Rep. 451.
The Court is of opinion that the proceedings in this case are defective. The petition does not make the allegations which are necessary to show with certainty what the Court is asked to command the defendants to do, and the writ does not set out the thing which the defendants are commanded to do, with such certainty as to enable them to do it. It alleges "that in pursuance of the contract the petitioner commenced collecting materials and has prosecuted the work, and when an installment for the first month was due, he called upon the defendants, for payment, which was refused." (This was in September 1855.) It further alleges, that in September, 1857, the petitioner applied to the defendants, in open court, for payment "of what is due him for the work already done, the materials furnished, c.," which was refused.
It is stipulated in the contract, that the commissioners are to appoint a superintendent, who is to make monthly estimates of the work done, and the materials furnished by the petitioner; which estimates, certified by the superintendent, are to be paid, deducting 10 per cent. The petition is *Page 269 defective in this; it does not aver the amount that was due, and which is claimed as an installment for the first month. It does not allege that the superintendent made an estimate at the end of the first month and gave a certificate thereof, or account in any way for the omission of this allegation. So that both in respect to the amount claimed, and the mode by which it has been, or ought to have been, ascertained, there is less certainty than is required in a common count in assumpsit for work and labor done.
These objections apply with greater force to that part of the petition, which has reference to what is supposed to be due for work and materials up to September, 1857. It is not alleged that estimates have been made, nor is there any allegation of the grounds on which the superintendent failed to make them, if such be the fact. Nor, in short, is there any allegation from which even a conjecture can be founded as to the progress of the work in 1857.
The writ is also defective. This follows, as a matter of course, for it must pursue the petition, and can have no greater certainty. Accordingly, it commands the defendants "to pay to Paschal McCoy whatever sum is now duehim on account of furnishing materials and doing work upon the courthouse and jail," c. What sum are they commanded to pay? Is it left to them to fix the amount? If not, how is it to be fixed? A sovereign never issues a command, unless the thing to be done is certain; so that a failure to do it, will justly incur the consequences of a wilful disobedience. Suppose, in our case, the defendants make return that they have not paid the petitioner, because they have not been able to agree upon "the sum that is now due him," would this be a sufficient return? If so, what traverse could be taken by the petitioner? It is manifest that the mode of proceeding, under the writ of mandamus, is wholly inapplicable to such a state of things; Tucker v. Justices of Iredell, supra.
The other branch of the petition and writ, by which the defendants are commanded to put themselves in a state of readiness to pay the amount that may thereafter become *Page 270 due for such work and materials as may afterwards be done, or furnished, presents an interesting question. The work may never be done, or the materials furnished. In the case of individuals, where one agrees to pay for work after it is completed, the other party acts upon the ordinary presumption, that he will provide the means of doing so, and trusts to him in this respect, relying on a remedy in the event of a failure; but there is no proceeding that can be instituted upon the presumption, or in anticipation, of such failure.
It is not necessary to pursue the consideration of this subject, as the case is disposed of on the ground stated above. Nor is it necessary to consider the various other suggestions that were made in support of the motion to quash.
The order of the Superior Court, overruling the motion to quash, is reversed. Let the proceedings be quashed, and judgment be entered against the petitioner for costs.
PER CURIAM, Judgment reversed.