Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-11-07
foster COUNTY
Loser In CASE
SUPREME COURT RULES
THAT CITIZENS DON'T
HAVE TO PAY.
IS AN UNUSUAL Case
Men Offered to Give Court House
Site; Weren't Given Chance
To Do It.

A decision III an unique case was
handed down by the Supreme Court
yesterday afternoon. 1t is the case
of County OF Foster VS.. P. e. Morris,
and others.
A few years ago when Foster cOun-
ty commissioners were contemplating
the erection of a new court house, sew
eral citizens Of Darlington offered to
furnish site for the building. "A
bond was given by these men to guar
antee the delivery of the site. An ell
ection was held and the county was
bonded for $4,000 for court house.
The commissioners selected site for
which they paid $2,S70, after selling
some buildings from the lots pur-
chased, but never conferred with
these citizens.
Would It Pay.
After the site was selected, paid for,
and the building erected, the county
commissi sioners asked the citizens on
this bond to pay for the site. The
signers Of the bonds refused upon the
ground that they had offered to do.
nate site-the real property, and not
to donate cash. They called the com.
missioners' attention to the fact that
they, the commissioners, had proceed
setl win d purchase without consulting
them or asking that they perform
their contract. The matter went to
the district court and was heard by
Judge Coffey, who held that the
bondsmen were liable. r. II. McCue,
acting as attorney for the bondsmen,
presented the matter to the Supreme
Court, which reversed the lower court
and dismissed the case, thereby free
ing the bondsmen fro mliability. Mr..
McCue took for his grounds that the
bondsmen were not given a change
to perform, and in fact that perform
ance on their part was impossible by
reason Of the action of the county
commissioners. ,..r
Following is the syllabus of the
court: ~.
County of Foster, Plaintiff and Res
pondent; VS..
1P. e. Morris, et al, Defendant and
Appellants.
These nine defendants with eight
cen other persons in 1909, executed to
plaintiff County bond III the sum
Of $4,000, in the ma ter of a court
house site, should bonds for the erec-
ton of new court house be voted,
which was done. A new site was re-
quired. Con- truction of the bond is
the sole question. County urges that
the bond was in effect subscription
of money to Ibe applied to reimburse
it for 'Ae expense of ,such new site.
Defendants assert that by the bond
they merely became sureties that up
on selection of a site by the County
board, they would furnish and deliv-
er to the County, free of expense on
demand the site so chosen; that they
nave never been called upon to fur
nish title to such site but that the
County purchased it, making it impos-
sible for them to do so and thereby
discharged them from liability. Held:
hat the bond is one Of suretyship
and not a subscription. That as the
County purchased the site from many
different owners holding portions
thereof, and this without notice TO or
demand upon the sureties to perform
by furnishing plaintiff with title anG
not affording the su1eties an OppOr-
tunity to perform their contract OF
suretyship, these sureties are dis
charged Judgment entered against
them ordered vacated and the action
dismissed.
Syllabus by the Court.
Appeal from the district court OF
Foster County, Coffey, ]. Reversed
with direction to dismiss. Opinion Of
the Court by Goss, J.
T. F. IMcCue, Of Darlington, attor
ney for defendants and appellants.
U. B. Craven, of Darlington, States
attorney Of Foster County, attorney
for plaintiff and respondent.