Dissenting opinion by
Judge Guffy:The appellant instituted this action in his own name, and in the name of the Commonwealth,, for his use and benefit, against the appellees. A demurrer was sustained to the petition, after which the appellant filed an amended petition, and defendant’s demurrer thereto was overruled. The petition as amended substantially avers that J. N. Rowlett became an accepted bidder for the repairing and keeping in order certain portions of public roads and certain bridges and culverts of Henderson county, and, for the faithful performace of his contract with J. H. Tillotson, James Haynes, G. L. Reid, and W. A. Barnett, executed bond to the Commonwealth of Kentucky for the faithful performance of his duty as to the repairing and keeping in' proper condition for a specified time the roads and bridges as ijamed in said bond; precinct No. 76 of the roads of Henderson county being one of the road divisions or precincts included within said contract and bond. It is further alleged that defendants had broken their contract, in this: that said Rowlett failed to repair, work, or put said road, or culverts and bridges under 20 feet on same, in good condition for the general travel or hauling from the date of his said contract, Marsh 8, 1898, to the date of the injury hereinafter complained of by plaintiffs, to-wit, June 16, 1898, and failed to repair and work said road *131of precinct No. 7G, culverts and bridges under 20 feet included, so that same was in good or safe traveling condition on the 16th of June, 1898, and it was not in good or safe traveling condition at said- time, and the said defendants permitted a culvert or bridge. about 50 yards on said road from where same intersects the Knoblick road, it being a bridge or culvert about 12 or 14 feet in width, and 4 or 5 feet in depth, to remain out of repair, and dangerous to travel thereon, and that it so continued from date of contract, March 8, 1898, to the date of plaintiff R. E. Moss’ injury, 16th of June, 1898. The petition then particularly describes the defects and condition of said bridge and culverts, and charged that it was gross negligence upon the part of the defendants, and that defendants could easily discern the same, by examination from the sides or from beneath said bridge, but same was not noticeable to a traveler going from either end of said bridge or culvert. The petition then proceeds to show that, by reason of said failure to repair said bridge or culvert, the plaintiff was severely injured while passing oyer the bridge, without any fault on his part, for which he prayed judgment for $1,500 and $25 doctor’s bill. The concluding stipulation of the bond reads as follows: “For the faithful performance of the above contract we are bound to the Commonwealth of Kentucky, for-the benefit of Henderson county, in the sum not to exceed twice the amount specified in this contract.” The amount that Rowlett was to receive for the services agreed to be rendered was $474.80.
The substance of the defense is that defendants signed a bond on the 8th of March, 1898) very like the one described in the petition, but it is no† the same contract or bond sued on. That on the 8th of March, 1898, one Samuel Crawley .let out to Rowlett to work in the roads in sec*132tions as follows: 56, 54, 27, 23, 24, 26, 67, 82, 71, 74, and 97 — at tbe price of $366.05; which contract was signed by defendants, delivered to and approved and accepted by said Crawley, and filed by “the county clerk, and is now in his office, and in full force, and is for $366.05. Some two 'days after the execution of this bond to Crawley, he let to Rowlett other sections of roads to be worked, to wit, Nos. 76, 57, 58, 78, 102, for $113.05. Then Crawley proposed to Rowlett to give another bond, for $479.80, for all the roads, and he would surrender to said Rowlett the $366.05 bond, to be canceled. To this proposition defendants consented, and it was the sole condition and consideration-for said second bond. Defendants each signed a bond or paper like the one filed, under the express condition that the other bond was to be canceled before the new one should take effect. Said paper was signed by each defendant in his home, not in the presence of, nor did they acknowledge the same before, Crawley, nor did he attest the same, nor ever offered to surrender the original bond; hence they say they never executed the bond described by the copy filed with the petition, and the one sued on is void. The second paragraph reads thus: “They say they have no knowledge or information sufficient to form a belief as to whether or not the plaintiff has paid $25 or othey sum -for being cured of his hurts, if any he received, nor have they such knowledge or information as to the extent of his injuries, if any he received.” The third paragraph traverses defendants knowledge of the unsafe condition of the bridge, and charges that plaintiff had. full knowledge of the condition of the bridge before he rode on, and if he was hurt it was in part his own fault in going on said bridge, knowing of its unsafe condition.
The reply may be considered as a traverse of the execu*133tion of the first bond referred to by defendants. It is alleged that road precinct No. 76 and others-were let out on the date following the precincts first mentioned, -and were to be- kept in good condition for the year 1898 and part of 1899. The conditions as to the signing of the bond sued on, as stated by defendants, are traversed. Plaintiff also denied knowldge of the unsafe condition of the bridge. It may be further stated that the pleadings show that Rowlett entered upon the discharge of his duties, and presumptively received the sum of money specified in the contract sued on.
At the conclusion of plaintiffs’ evidence, the defendants moved the court for peremptory instructions, which mo-, tion was sustained, and the court gave to the jury the following . instruction: “The plaintiffs having failed to establish their rights to recover, you will find for the defendants.” The jury thereupon returned the following verdict: “'We, the jury, find for the defendants. [Signed] S. E. Hicks, Foreman.” The court thereupon dismissed plaintiffs’ petition, to all of which plaintiffs excepted, and prayed an appeal to the court of appeals, which was granted. Plaintiffs’ motion for a new.trial having been overruled, they prosecute this appeal.
the appellee insists that the judgment should be affirmed for three reasons: First, upon the idea that the bond is not part of the record,'and hence not before the court; second, if the bond be a part of the record, yet the demurrer should have been sustained to the petition as amended; third, because the bond sought to be sued on was merely an escrow.
As to the first proposition, we think the bond constitutes a part of the petition, and is part of the record, and hence is before this court.
*134As to the second ground, it seems that appellee is of the opinion that the' demurrer should have been sustained because, at most, the bond sued on is- only a common-law bond, and for that reason no liability attaches to the surety for the injury complained of. It .would seem from the argument that appellees do not contend that they would not be liable if the bond had been properly attested, and otherwise properly given and accepted, for the injury complained of, provided the negligence -of appellee Rowlett caused the injury. Chapter 110 Kentucky Statutes, provides for the letting of such contracts as appear to have been entered into in this case, and provides for the execution of the bonds, and liability and duties of the contractor. -Section 1816 provides that the contractor’s bond required by the preceding section shall be given to the Commonwealth for the benefit of the oounty, with good surety, to be approved and attested by the supervisor or judge, in at least double the amount of the value of the work to be done, and conditioned for the faithful performance of the work within the; time prescribed, -and shall be returned by the supervisor or judge to the county court -at its next ensuing term, which facts shall be noted of record, and the bonds kept by the clerk in his office vault, labeled an-d marked “Contractors’ Bonds.” It is further provided in said section as follows: “For any breach of a contractor’s bond, he -shall be liable to a fine of from ten dollars to one hundred dollars, and to action fordamages by all parties aggrieved thereby. . . .” It is further provided in said section as follows: “The sureties of all delinquent road and bridge contractors shall be liable for all fines imposed and judgment for damages rendered -against their principal under this act. All parties proceeded against, as hereinbefore provided, shall be entitled to a trial by a jury.” Section 3751, Kentucky Stat*135utes, provides that all obligations required by law for the discharge or performance of any public or fiducial office, trust, or employment shall be a covenant to the Commonwealth of Kentucky from the person and Ms sureties that the principal shall faithfully discharge the duties' of the office, trust, or employment but a bond or obligation taken in any other form shall be binding on the parties thereto according to its terms. Section 3752 reads as follows; “Actions may be brought from time to time on any isuch covenant or bond in the name -of the Commonwealth for her benefit or for that of any county, corporation, or person injured by a breach of the covenant or condition,- at the proper costs of the party suing, against the parties jointly or severally, together with the personal representative, heirs and devisees or distributees of such of them as may be dead; and the recovery against principal and surety shall not be limited by the amount of the penalty named in the bond. Nor shall the recovery be restricted only to such duties or responsibilities as belong to the office, post, trust or employment at the date of tbe covenant or bond, but may include any duties or responsibilities thereafter imposed by law or lawfully assumed.” It seems clear to us, by the very terms of the statute, supra, that, if Rowlett executed such bond -as the law required, he and his sureties would be bound for thle damages sustained by plaintiff, provided they were caused by the culpable negligence of Rowlett, and provided, further, that plaintiff was not guilty of such contributory negligence, as but for his negligence tbe injury would not have occurred. It is perfectly manifest that the bond sued on was in fact executed by tbe appellees-, and that it was in fact accepted by Crawley, tbe commissioner, and was returned to the clerk, and placed in a bundle or box, and marked and labeled “Contractors’ Bonds,” as re*136quire'd by law. It does not appear whether or not the execution of the bond was noted of record. We are not inclined to the opinion that the bond in question stands upon the same footing as the bond of a sheriff or guardian; but whether this be so or not, and whether it be considered as •a statutory or common-law bond, we ar:e of opinion, under the doctrine as frequently announced by this court, that the sureties are bound. In Cotton’s Guardian v. Wolf, 77 Ky., 238, it was held that the sureties in a guardian’s bond that was utterly void as a statutory bond, but good as a common-law bond, were liable for all moneys,' etc., that came into such guardian’s hands by reason of the execution of the bond in question. This doctrine rests chiefly upon the ground that the sureties by the execution of the bond enabled the guardian to get possession of the funds. The same is true in regard to the bond in suit. The execution and acceptance by the commissioner, although he did not -attest it, enabled Rowlett to obtain the contract and 'ail the benefits accruing therefrom. Hence it follows that he and his suretie smust answer for the damage resulting from his failure to discharge his duties, if he did fail. The object and purpose of the law requiring a commissionér to attest the bond was for the purpose of identifying it, 'and., as evidence that it was in fact executed. His attestation was not necessary to the validity of the bond, if in fact it was executed. It appears in this case that the commissioner did not see either of the bonds executed; hence he could not properly attest the same, because his attestation would mean that the parties hia'd signed the bonds, or, at least, had acknowledged them, in his presence. It is clear from the evidence in this ease that the acceptance' of thle bond in suit, and the whole arrangement in regard thereto, was for the accommodation of the appellees, to save them from the *137trouble of appearing before the commissioner and signing the bond in bis presence. If it be contended that the bond only obligated the signers to pay double the amount which Rowlett was to receive for the services', and therefore their liability could not exceed that amount, it is sufficient to say that the statute under which the bond was executed fixed the liability of the signers, and that such statute must be considered as if written in the bond. Moreover, it is nowhere provided in the statute that the liability otf the obligors in the bond shall not be double the amount to which the .contractor is entitled for performing the work undertaken by him. It is worthy of note that the statute requires that the bond shall be given to the Commonwealth for the benefit of thle county, with.good security, and at least double the amount of the work to be done. It may be that Henderson county' could not recover «more than double the amount which the contractor was to receive for'Ms services. But that in no wise affects the right given to- other parties by the same section to recover damages sustained by failure of the contractor to perform his duties, nor in any manner 'conflicts with section 3752, Kentucky Statutes.
The third contention, that the bond wa's an escrow, is not sustained by the testimony or the law in this aaise. It nowhere appears that the defendant ever demanded a return of the original bond after the acceptance of the second, but, on the contrary, it is pretty evident it would have been returned if demanded. Moreover, the return of the old bond to Rowlett was of no value to him. It would not have relieved Mm from any liability, nor dlid its retention, if it'was retained, increase his liability, because the new bond contained all of the covenants and requirements contained in the old bond, with the additional covenants which were agreed to by all of the appellees, as is clearly shown. *138No new pan? ties were added to the new bond, nor any omitted that had signed the old one. If it clearly .appeared, which it does not, that, by the terms of the agreement between Rowle.tt and Crawley, the new bond was not to be effective until the old one was surrendered, still there is no evidence of a breach on Crawley’s part; and, besides, as before stated, leaving the old bond, which, like the new, wais not attested by anybody, in the clerk’s office, could not work any possible injury to the appellees. It seems, therefore, clear to us that the peremptory instruction should mot have been given.
I think that the majority opinion nullifies a plain provision of the statute.