The judgment of the court was pronounced by
Rost, J.On the 12th day of September, 1840, the defendants gave their bond to the plaintiffs for tho sum of $900, conditioned as follows:
*274“Whereas the above bound Isaac Taylor, has this day received a draft on the parish treasurer of the aforesaid parish, for the sum of $600, which draft was given by order of the police jury of the aforesaid parish, for and in consideration of the said Isaac Taylor's having built a bridge over the Comite, near the plantation of John Carr, which bridge was reported unfavorably of by the bridge committee appointed for the purpose, which bridge the said Taylor agrees to warrant for the term of five years, from the 1st day of February, 1840.
“Now the condition of the above bond is such that, should the said Taylor keep the aforesaid bridge in a good and safe condition, and the abutments thereto in a good condition, for the term of five years, and leave the same in a good and passable condition to the public use, then this obligation to be void, else to remain in full force and virtue.”
In 1842, the bridge was damaged by a freshet, and Taylor, having been put in default, partially repaired the damage. In 1843, another freshet carried away the bridge, and Taylor, having refused- to rebuild it, was again put in default, and the plaintiffs instituted this action on the bond, praying, at the sainé time, that the warrant of $600 given him on the parish treasurer, and still unpaid, might be returned and cancelled. The defendants answered by a general denial, averred that the bond had been given by them in error, that the bridge had been built according to contract, and that it was destroyed by irresistible force, against which they did not warrant. The cause was tried before. a jury, who gave a special verdict in favor of the plaintiffs for the amount of the warrant, and that the same be given up and cancelled. Judgment was rendered accordingly, and the defendants, having failed in their application for a new trial, took the present appeal.
The motion for a new trial was properly overruled. The contract, stated to have been found after the verdict was rendered, could not exist without the defondants’ knowledge, and should have been pleaded in the answer.
We cannot go into the enquiry whether the bond sued upon was given in error; there is no evidence of that fact in the record. As the defendants bound themselves, they must remain bound; and the bond is conclusive evidence that the bridge was defective, and that the defendant Taylor had not complied with his contract.
Whether the freshet, by which the bridge was carried away, was an irresistible force, is a matter of conjecture. The witnesses think that it was not, and that the bridge might have been built so as to withstand it. Freshets seem to be of frequent occurrence on that river, and the experience of the witnesses gives much weight to their testimony.
This is a hard case,, whichever way it may be decided. The jury appear to have considered that the loss ought to fall on the party in fault at the time the bridge was destroyed; and in this they made a correct application of the law to the facts before them. Civil Code, art. 1927, no. 4. Judgment affirmed.