Crawford vs. Hodge.

Reported in the decision.

M. R. STANSELL and S. ATTAWAY, for plaintiff in error.

J. M. NEEL and A. M. FOUTE, contra.

BLECKLEY, Chief Justice.

It is true that a notice in writing to sue, which a surety has given to the creditor, is the best evidence of its own contents, and notice to produce it at the trial ought to be given as preliminary to the introducton of secondary evidence. This is the general rule. Frank vs. Longstreet, 44 Ga. 178; Lathrop vs. Mitchell, 47 Ga. 610. But there is only a feeble presumption that such a paper has been preserved by the creditor, and when that presumption has been overcome by the creditor's declarations that the document is lost, that after diligent search it could not be found, that she believes it to have been destroyed, and that nevertheless she is bound by it, the probability that giving her notice to produce it would accomplish anything is too remote to leave it incumbent upon the surety to give such notice. In the present case, these declarations were made in answer to an inquiry by the surety and his attorney. They were proved at the trial, and though they were made several months before, and though it was possible that the lost paper might be found in the interval, we think, had there been no evidence in reply showing it was found, the secondary evidence offered to prove the contents of the notice would have been admissible. Was it rendered inadmissible by the fact, not previously known to the surety or his attorney, that the lost document had been found? If so, the application for a continuance on the ground of surprise ought to have been granted, for one of the plaintiff's attorneys, the then custodian

Arnold, Estes & Company rs. Henry County.

of the paper, as we infer from his testimony, claimed his privilege and declined to produce it. We have no doubt that the court should either have granted the continuance, or proceeded with the trial as though the paper were still lost, to the extent of admitting parol evidence of its contents. That it had been found did not put it in the defendant's power for that trial. It was still as much beyond his power as if it had remained lost. And the admission of the secondary evidence could not possibly have done injustice to the plaintiff, for any misrepresentation, designed or undesigned, of the contents of the notice could instantly have been corrected by putting the notice itself in evidence. There was no intimation that the document was not actually present in court. On the contrary, as we have said, the inference from the testimony is that it was there in the possession of one of the attorneys. The better disposition of the case, however, would have been to grant the continuance, and afford opportunity to compel production of the paper by regular notice. Chester Church

vs. Blount, 70 Ga. 779.

The motion for a new trial was improperly denied. Judgment reversed.

ARNOLD, ESTES & COMPANY vs. HENRY COUNTY.

When the building of a bridge is let out by the county, and it is built by a contractor, from whom the proper county authorities fail or neglect to take a bond of sufficient guaranty, and any person is damaged by reason of any defect in the bridge, he can bring his action either against the contractor or against the county. It is not necessary that he should sue the contractor to insolvency before he can sue the county.

January 9, 1889.

Actions. County matters. Bridges. Bonds. Dam

ages.

Arnold, Estes & Company vs. Henry County.

Before Hon. A. M. SPEER, judge pro hac vice. Henry superior court. April term, 1888.

Reported in the decision.

E. J. REAGAN, G. W. BRYAN and JOHN I. HALL, for plaintiffs.

E. WOMACK and W. T. DICKEN, for defendant.

SIMMONS, Justice.

Arnold, Estes & Co. sued the county of Henry for damages, alleging, in substance, that a horse and mule belonging to them had been drowned, and a certain wagon, also belonging to them, had been injured, while crossing a public bridge in said county, by reason of certain defects in the bridge, fully set out in the declaration. They also alleged that the building of the bridge had been let out to a contractor, who built the bridge under the contract, and that the county had neglected to take a bond from said contractor. They alleged that, by the death of the animals and the injury to the wagon and harness, they had been damaged to the amount of $500; and that they had made a demand on the county within twelve months.

The defendant demurred to this declaration, on the ground that it could not be sued until after the contractor had been sued to insolvency. The trial judge sustained the demurrer upon the ground that the county was secondarily liable only, and that the contractor should first be sued to insolvency before the action would lie against the county; and to this ruling and decision the plaintiffs excepted, and brought the case here for review.

We think the court below erred in sustaining the

Arnold, Estes & Company vs. Henry County.

demurrer and dismissing the case, under the facts alleged in this declaration. Code, §671, requires that "when a public bridge is let out, the contractor

must, in his bond, make a condition also to keep it in good repair for at least seven years, and as many more years as the contract may be for." Section 690 declares "any proprietor of any bridge whether by charter or prescription, or without, or whether by right of owning the lands on the stream," bound to prompt and faithful attention to all his duties as such; "and if any damage shall occur by reason of non-attendance, neglect, carelessness or bad conduct, he is bound for all damages, even if over and beyond the amount of any bond that may be given." Section 691 applies the preceding section "to all contractors for the establishment of such, when damages accrue from a want of good faith in performing their several contracts, and if no bond or sufficient guaranty has been taken by the ordinary, the county is also liable for the damages." In this declaration, as has been seen, it was alleged that the bridge was let out to be built by a contractor, and that the county neglected to take a bond from him. The last quoted section (§691) declares that if no bond or sufficient guaranty is taken by the ordinary, the county is also liable for damages; and the preceding section (§690) declares that if any damage shall accrue by reason of non-attendance, neglect, carelessness or bad conduct of the proprietor, he shall be liable for all damages; and this rule is made applicable, by section 691, to all contractors and to the county when no bond is taken from the contractor. When, therefore, a bridge is let out by the county and built by a contractor, and the proper county authorities fail or neglect to take a bond or sufficient guaranty from said contractor, and any person is damaged by reason of any defect in said bridge, he can

Arnold, Estes & Company. vs. Henry County.

bring his action, either against the contractor or against the county. It is not necessary, in our opinion, that he should sue the contractor to insolvency before he can sue the county. The contractor is liable for said damage; and if the county neglects to take a bond, the statute says it shall also be liable. The county is made liable for the neglect of its officers, or the omission of a legal duty imposed upon them by law, to wit, the failure to take a bond from the contractor. The contractor is liable whether he gives a bond or not, and the county is only liable when it fails to take a bond from the contractor. "In order, therefore, to make out a case for recovery against the county, after proving the injury or damage it will be necessary to show (1) that it was an injury for which the contractor was liable; and (2) that the county authorities had failed to take from the contractor the bond and security which it ought to have taken. These two facts will fix liability upon the county, and nothing else will." And this is what we decided in the case of The County of Monroe vs. Flynt, 80 Ga. 489. In that case we ruled, as we do here, that the contractor was liable, and if the county authorities failed to take a bond the county also was liable. The person damaged can sue the contractor, or can sue the county, if no bond has been taken from him, without suing the contractor in the first instance. In the case of Monroe vs. Flynt, supra, we decided that the county was not liable, because seven years had expired, and the plaintiff did not show that the contract made with the county by the contractor was for a longer time than seven years.

Judgment reversed.