Johnson vs. The Georgia Midland & Gulf Railroad Co. Williamson vs. the same.

privilege of entering Atlanta had not been secured. Under the evidence, we think it had not been, for a mere proposal on the part of the East Tennessee, Virginia & Georgia Railroad Company, stating terms, etc., would not suffice for a privilege on the part of the new railroad, unless the terms had been accepted; and it seems no acceptance had taken place. But while we think that the privilege was unsecured, we are nevertheless of opinion that the maturity of the notes was not on that account postponed.

2. Nor would it affect the maturity of these contracts were the new road not operated entirely independently of the Central Railroad. Certainly how the road was to be operated was not intended to be a condition precedent to payments that were to be made before it was operated at all, and even before it was in a state in which it could be operated. No railroad is ready for operation in advance of laying down the cross-ties and constructing the trestles and bridges. Yet the stipulation here was to pay when the line lacked these requisites and all others which were to be supplied later if the board of directors made the stipulated decision and published it in the appointed way. How the railroad was to be operated related to a matter that was to occur after the notes were paid, not before. This being so, the mode of operation cannot be construed as a condition precedent. But even did it bear that construction, the evidence, we think, indicated that whilst there are amicable relations and business arrangements between the two roads, their respective operations are wholly separate and independent.

3. What has been said above, disposes substantially of both of these cases, save as to the one point in that of Williamson, which relates to the alleged agreement to lay down a side-track upon his premises or his place.

Crawford vs. Hodge.

It is not suggested that it was any part of that agreement that this work was to be done at any specified time, much less that it was to be done before he paid his money. It may be that his money is needed for the very purpose of performing this engagement. If he had wanted the side-track before his notes matured, he should have contracted to get it before, and not, as he did contract, to pay when the road itself was ready for the cross-ties, etc. If authority were needed to show that this matter as it stands was not a condition precedent, the cases of Chamberlin vs. Painesville Railroad Company, 15 Ohio St. 225, and Paducah & M. R. Co. vs. Parks, by the Supreme Court of Tennessee, 8 S. W. Rep. 842, would be sufficient. Moreover, the difficulty of supplying such a condition by parol evidence without some averment that it was left out of the writing by fraud, accident or mistake, would seem insuperable. Henderson vs. Thompson, 52 Ga. 149, and numerous other cases.

Judgment affirmed.

CRAWFORD VS. HODGE.

Where, as in a written notice to sue, there is but a feeble presumption that a paper has been preserved, the defendant may introduce parol evidence of its contents, after proving that the plaintiff, on inquiry for it pending the suit, answered that it was lost, that she had made diligent search for it, that she believed it destroyed, but that she was bound by it. If her attorney in reply testify that the document has since been found, but he declines to produce it, the court should either admit the secondary evidence, or grant a motion made by the defendant to continue the case on the ground of surprise. The latter would be the better course.

December 12, 1888.

Notice.

Judge FAIN.

Evidence. Practice. Continuance.

Before

Bartow superior court. July term, 1887.

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 con-
tinuance, 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 cor-
rected 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 dis-
position of the case, however, would have been to grant
the continuance, and afford opportunity to compel pro-
duction 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

Arnold, Estes & Company vs. Henry County.

ages. 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