Debt upon a bond, executed by the defendant's testator, Erasmus Ingram, and payable to the State of North Carolina. The substance of the condition of the bond was that the said Erasmus should build a public bridge in the county of Anson, the location of which was described, and for the building of which he had contracted with certain commissioners appointed by the county court for that purpose, and also that he should keep the same in repairs for seven years from 10 October, 1838. The breach alleged was that he neglected to (442) keep the bridge in proper repair. The pleas were non est factum, conditions performed, conditions not broken.
Upon the trial the subscribing witness swore, that he attested the bond and believed it was signed by the obligors in his presence, though he had no distinct recollection of the transaction. The clerk of the county court stated that he found the bond filed away among the records of his office. Another witness then deposed that in the year 1842 the bridge referred to in the bond was so much out of repair that the county court found it necessary to have it repaired and appointed for that purpose a committee, who let out the repairs to the lowest bidder, when the witness undertook it and received therefor the sum of fifty-five dollars and ninety-eight cents. Counsel for the defendants insisted that the action could not be sustained as there was no authority to take the bond payable to the State; and, further, that if it could be sustained the repairs might have been made for a less sum, and proposed to examine testimony for the purpose of showing that fact. But the court was of opinion that the bond, being for the public benefit, might be supported as a voluntary bond; and the proper measure of damages was the sum the county was compelled to pay in consequence of the failure of the defendant to keep up the bridge according to his obligation. *Page 314
There was a verdict for the plaintiff and, judgment being rendered pursuant thereto, the defendant appealed. In S. v. McAlpine, 26 N.C. 148, this court said that the capacity of the State to take a bond could not be denied. A bond payable to the State for the benefit of the body politic stands upon ground essentially different from one thus payable for the benefit of private persons, as S. v. Shirley, 23 N.C. 597. In the latter case there is no presumption of acceptance of the bond by the sovereign, unless there be an actual delivery in the cases and to the persons (443) authorized by the legislature to take it. But such express acceptance by an agent for the State need not be shown when the bond is, upon its face, exclusively for the use of the State. To such a bond the rule that, from the benefit to the obligee, acceptance is to be presumed, applies with as much reason as if the obligee was a private person. That the erecting and keeping up of a public bridge are for the use and benefit of the State is not to be questioned. The subscribing witness swore that he believed that the obligors executed the bond in his presence. And the bond was afterwards found in the possession of the clerk of the county court among the papers of the office, which court appointed the commissioners to let out the building of the bridge. This was evidence of a delivery for the State, either to the commissioners or to the clerk of the court.
Upon the next question this court does not concur in opinion with his Honor. The defendants contracted "to keep the bridge in constant repair for seven years"; and for a breach of that part of the contract, the rule of damages is the value of the repairs needed, and not the sum the county might have paid for them. The county very properly laid before the jury evidence of the modes of letting out the repairs and the price paid for them, as the means of enabling the jury to say what they were worth. But that did not preclude the defendant from giving evidence that they wereworth less, according to the usual prices of such labor and materials, so as to let the jury have full information on both sides as to the true value. We think, therefore, that the evidence offered by the defendant was improperly rejected, and, for that reason, the judgment must be reversed.
PER CURIAM. New trial. *Page 315
(444)