Jesse L. Rogers, for plaintiff in error.
James G. Rose, for defendant in error.
This was an action of debt, brought by the appellee, (the plaintiff below,) as bankrupt assignee of Howard, Cole & Co., against the county of Claiborne, Tennessee, on its bond or obligation, dated the seventh day of April, 1868, payable to one V. H. Sturm, or order, for $5,000, with interest, and indorsed by Sturm to Howard, Cole & Co. The following is a copy of the bond, together with the indorsement thereon, to-wit:
'COUNTY COURT-APRIL TERM, 1868.
The State of Tennessee, County of Claiborne: On or before the first day of January, 1870, the county of Claiborne is hereby bound and promises to pay to V. H. Sturm, or order, the sum of five thousand dollars, bearing inte est from this date at the rate of six per centum per annum until paid. And this bond is redeemable by the county at any earlier date if they choose to do so.
'By order of the county court of said county, at its quarterly term, on the first Monday of April, 1868, a majority of the acting justices of the peace for said county having voted the same, and ordered the bond of the county to be issued therefor.
'Witness, Thomas L. Davis, chairman of the county court of said county, and the seal of the court, this seventh day of April, 1868.
'[Seal.]
THOS. L. DAVIS, Chairman.
'Attest: DAVID CARDWELL, Clerk.'
Indorsed: 'Pay to Howard, Cole & Co., waiving demand, notice, and protest. VICTOR H. STURM.'
The case was commenced in the state court and was removed into the circuit court of the United States, and came up for trial on the pleas of non est factum, nil debet, and payment, other pleas having been overruled on demurrer. A verdict being rendered in favor of the plaintiff under the charge of the court, and exceptions being taken to the charge, the case is brought here by writ of error.
The bill of exceptions states that on the trial the plaintiff introduced proof tending to show that the county of Claiborne, by its county court, appointed commissioners, who contracted with Sturm for the erection of a court-house in Tazewell, the county seat; that by the original contract he was to receive $8,000; and that the contract was subsequently modified so as to enlarge the building, without fixing specifically the additional price to be paid. The plaintiff further exhibited proof of the following orders made by the county court and entered of record, namely, on the sixth of April, 1868, the following: 'Ordered, by the court that V. H. Sturm be allowed the sum of ten thousand dollars, in part pay for the court-house.' And on the fourth day of January, 1869, the following: 'It was this day ordered by the court that Benjamin Ausmus, revenue collector of Claiborne county, be permitted to examine and investigate the payment or transfer of certain county bonds issued in favor of V. H. Sturm, and whether or not said bonds have been paid, transferred, or assigned to any party for a full and valid consideration before the seventh July, 1868; and if so that the said Ausmus, as revenue collector, be allowed to pay over or deposit what funds he may have on hand, collected for that purpose, to the person or persons holding the legal and lawful possession of said bonds. But should the bonds have been enjoined before or since the above date, then the money so collected and in the hands of said revenue collector will be deposited with the clerk of the chancery court at Knoxville, taking his receipt therefor.' There was also evidence tending to show that the bond sued on was made and delivered to Sturm by the chairman of the county court, together with another similar bond, which has been paid. The defendant introduced evidence tending to show that the value of the additional work on court-house was $3,000; that between $10,000 and $11,000 had been paid to the contractor, V. H. Sturm, and his order, outside of the amount called for in the bond sued on.
The following sections of the Code of Tennessee show the powers of counties in that state in relation to the erection of public buildings, and the making of contracts:
Sec. 402. 'Every county is a corporation, and the justices in the county court assembled are the representatives of the county, and authorized to act for it.'
Sec. 403. 'Suits may be maintained against a county for any just claim as against other corporations.'
Sec. 404. 'Each county may acquire and hold property for county purposes, and make all contracts necessary or expedient for the management, control, and improvement thereof, and for the better exercise of its civil and political power; may do such other acts, and exercise such other powers as may be allowed by law.'