We are satisfied, from an examination of the record, that the right to recover this balance rests upon a contract between appellant and appellees, alleged to have been made November 7, 1883, and which contract, according to the testimony on behalf of appellees, was made with the county board while in session, and by the agreement of said board was to have been recorded in the proceedings of that meeting, but was not so recorded. The terms of this contract were, if taxes were assessed to pay interest on said §100,000 scries of bonds, and if Richard Bicheson, or some other taxpayer of the county would resist the payment of the taxes in the County Court, and appellees should there appear and attend to the suit, and the case was appealed to the Supreme Court of the State, if that court, upon the hearing of such appeal, should render a decision to the etiect that said $100,000 of bonds were issued without authority of law, or were void, that the county would then, in consideration of the services appellees had rendered for the county in the County Court, in the Franklin Circuit Court, and the Federal Circuit Court, and in consideration of the benefits the county would receive by the bonds being declared void in the suit through Bicheson, or some other taxpayer, pay appellees the balance, amounting to $2,365.76, on the $8,000 remaining after deducting the amount of $3,634.24 previously paid.
In pursuance of this contract, as is claimed on behalf of appellees, they filed objections on behalf of Bicheson to the rendition of a judgment for taxes levied to pay interest upon said series of bonds, and at the May term, 1885, of the County Court, the objections were heard and overruled. From that judgment Bicheson appealed to the Supreme Court. Appellees appeared for him there, and by the judgment of that court said bonds were declared to be invalid and void. That judgment remains in full force, and the record in this cause shows that appellant availed itself of the benefits thereof, and no tax has been levied since to pay interest on these bonds.
On June 7, 1886, appellees presented to the county board' their claim for these professional services, amounting to §5,365.74, with their affidavit showing its correctness, but the claim was not allowed or paid. The verdict and judgment was for the amount of this claim.
The 1st error assigned is overruling demurrer to the second count of the declaration. We think this count averred a good cause of action, hence the 2d error assigned, “refusing to carry back demurrer to defendant’s pleas to said second count,” is also not well assigned. The 3d error assigned is the admission of improper evidence on behalf of appellees. Entertaining the view we do of the contract alleged to have been made ¡November 7, 1883, we discover no error under this assignment requiring a reversal. The 4th, 5th, 6th and 7th assignments of error relate to instructions, and, so far as we deem it necessary, will be referred to hereafter. The 8th and 9th assignments of error challenge the propriety of the court’s action in a conversation held with the jury when they asked for some further instructions, and in reading the instructions given, in the order as shown by the record. As to the last objection, we desire to say it is the proper practice to read all the instructions given for plaintiff, and then all those given for defendant, instead of reading an instruction for plaintiff and then an instruction on behalf of defendant, alternately, as was done by the court in this case; but we discover nothing to justify even criticism in the conversation complained of.
The 13th error assigned is, entering judgment on the verdict, and the 14th that the verdict of the jury was against the evidence. These include and cover all that is material in the 10th, 11th and 12th assignments of error. It is insisted under these assignments, that the contract of November 7, 1883, above mentioned, even if proven to have been made, was ultra vires and not binding upon the county because in the proceedings to test the validity of the $100,000 series provided by the contract, it was not stipulated the county should be party plaintiff or defendant, but Eicheson or some other taxpayer of the county; and because the contract provided for the payment of a contingent fee for professional services, employed to defeat the collection of a tax chcmped on a State assessment. P. 24, clause third, Chap. 34, Starr & Curtis’ Stat., provides, each county shall have power, ££ to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers.” P. 23 provides that the county board can exercise the powers granted to the county as a body corporate or politic. In the exercise of the power “ to do all other acts in relation to the concerns of the county,” the county board could lawfully take steps to defeat the collection of a tax assessed to pay an apparent, but in fact an illegal debt of the county, and procure a final adjudication declaring void and invalid said bonds, to pay the interest upon which such tax was assessed, and thereby relieve the taxpayers of the county from an unjust and illegal burden. A contract made for this purpose was within the object and spirit of the statute, and we see no good reason to hold the mode adopted to test the validity of the bonds, was forbidden by law, or was improper.
“ A thing which is within the object, spirit and meaning of the statute, is as much within the statute, as if it were within the letter.” Potter’s Dwarris on Stat., 179.
Holding this contract not invalid, or against public policy, we would not disturb the verdict of the jury had they been properly instructed. But there was a conflict of evidence as to the fact whether or not the contract of November 7, 1883, was made, and by plaintiffs’ fourth instruction the jury were informed, “ If you believe from the evidence that the Supreme Court of the United States passed upon the validity of a part of the one hundred and forty-nine bonds mentioned in this suit, and held the same to be invalid, then the validity of all of said series of bonds, and the liability of said county for their payment has been tested, and you should find for the plaintiffs in this suit, in such an amount as you may believe is warranted by the evidence.”
This instruction ignored the question of fact, the making of the said contract, and in effect informed the jury, plaintiffs can recover if the United States Supreme Court declared the nine bonds of the §49,000 series invalid, even if no contract was made between the parties on November 7, 1883, as claimed. This instruction was probably based upon the theory that the authority to issue both series of bonds rested upon the same vote, and they were issued on the same day and under the same conditions and circumstances; hence, if any part of either series were declared void by said court because of the non-performance of some conditions- precedent by the railroad company, the balance, being subject to the same objection, were necessarily void, and appellees having appeared on behalf of the county and filed a brief and rendered services in the Supreme Court of the United States in the cause in which said nine bonds were adjudged void, became thereby entitled to additional compensation, because the effect of the decision was to declare all the bonds of both series bad.
This theory we are not prepared to adopt, nor can we hold appellees were entitled to recover anything in this suit under the written contract of May 22, 1880; but as before said, their right to recover rests upon the alleged contract of November 7, 1883.
The court erred in modifying, and as modified, giving the jury, defendants’ third instruction. "We do not understand the law to be as there declared, that county boards, in the absence of any contract, can lawfully pay out county funds for liabilities incurred hy private individuals, where it is shown by the evidence, “the matter about which the private individual incurred such liabilities, inures to the benefit of the people of the county represented by its county board.” For the error in giving the fourth instruction for plaintiffs, and the defendants’ third instruction as modified, the judgment is reversed and the cause remanded.
Reversed and remanded.