(on rehearing). In its motion for rehearing the district complains because this court, in the original opinion, did not dispose of the issue between appellant and the district with reference to the certified check of $5,000. The lower court, as shown in the • original opinion, rendered a decree in favor of appellant against the district for the amount of this check, and set-off the decree with the sum of $5,000, which the district had paid to Burks on the indebtedness which appellant owed Burks for the work which the latter had done, and for which he had not been paid by appellant or the district. The trial court correctly held, under the circumstances and facts, which are set forth in the original opinion, that the $5,000 belonged to appellant and not to the district.
Judge Dillon says: “Where a bidder accompanies his bid for the performance of a public work with the deposit of a certain sum, under an agreement to forfeit the sum deposited in case of his neglect or refusal to enter into the contract for the work, and, tvithout default on the part of the board, he fails to execute the contract, he cannot recover hack his deposit, and the hoard may declare same forfeited.” 2 Dillon, Mun. Corp., p. 1222; 28 Cyc. 1032; Jackson v. Adams, 30 Sou. 694. This is sound doctrine which counsel for the district invokes, hut it does not apply to the facts of this record. The appellant did not neglect or refuse to enter into the contract for the work. The fact that he and the district entered into the contract for the work, and that he was allowed to enter upon the performance of the work, without executing the bond in .compliance with the statute, which was prerequisite to the validity of the contract, was, at least, as much the fault of the board as it was the fault of appellant. The court ruled correctly in not declaring a forfeiture against appellant of the "'five thousand dollars. This money belonged to appellant. ' But appellant owed Burks the sum of $10,502.75 for work which the latter had performed under his contract with appellant. The district was liable, as stated in the original opinion, to appellant for this work on the quaoitum meruit. It was likewise liable to the subcontractor Burks. For it had permitted appellant to have the work done by Burks Avithout first requiring appellant to execute the bond which the statute requires for the protection of the district as well as subcontractors. It received the benefit of the work, and had not paid appellant., nor had appellant paid Burks for same. The district was bound to pay appellant, and appellant was bound to pay Burks, and the district was likewise' bound, under the circumstances, to see that Burks was paid.
The appellant concedes here that it is indebted to Burks for the work done by him, and for which hé had not been paid. Appellant does not ask that the decree in favor of Burks against him be reversed. On the contrary Ms counsel say: “We do not ask a decree for the $5,000, because we owed Burks, and, if the district is made to refund this $5,000, Burks would pay it hack to the district, and his claim would he increased by the same amount. The result would be that we would owe $5,000; that is, instead of owing $5,445, we would owe him $10,445.” We -adopted this suggestion of counsel, and disregarded the matter of the certified check in the former opinion. But, as counsel for the district, on rehearing, ask for an express decision on the issue between the district and -appellant as to the certified check, we now affirm the decision of the chancery court on this issue. We also affirm its decree in favor of Burks against -appellant for the sum of $5,445, the balance due Burks after receiving the payment of $5,000, the amount of the certified check. We also direct, as in the original opinion, that the lower court enter a decree in favor of Burks against the -district for the sum -of $5,445, with accrued interest.
While this result gives Burks a decree against both •appellant and the district for the sum of $5,445, for the balance due him for his work, yet he can have only one satisfaction, and the chancery court can direct that, when the district or appellant shall have paid the amount of this decree to Burks, it shall be in satisfaction of the decree in his fav-or against the district and appellant. The trial court may also direct that, when the district has satisfied the decree in favor -of Burks, such satisfaction shall inure to the benefit of the district and set-off the decree in favor of appellant against the district for the same amount.
The decree -of the trial court is in all things affirmed, except in dismissing Burks’ complaint against the district. The decree in this particular is reversed, -and the cause is remanded with directions to -enter a decree in favor of Burks against the district for the -sum of $5,445, with accrued interest, and such further proceedings as may be necessary to conserve the rights of all the parties according to law and not inconsistent with this opinion.