Day, J.
I. It is conceded that the bridge is not constructed in accordance with the original written contract with Snodgrass. .It is also conceded that the written assent of the various members of the board of supervisors to a change in the plan of construction does not bind the county. Respecting this the court properly instructed the jury as follows:
1. contract : supervisors. “The first question for you to determine is whether the defendant consented to the change in the construction of said bridge as specified in the writing signed by said Joseph Carlisle and others. That writing purports -^g the act 0f ^iie parties signing it individually, although supervisors, and on its face and of itself does not bind the county. ”
It is necessary, therefore, that there should be, by the members of the board of supervisors, as such board, some recognition of the right to mate such change in the plan. For, as the board might, before the bridge was erected, have agreed to a change in the character of a structure, so they might during the process of erection, or after it was completed, assent to the changes made.
Hence it became a very material question in this case to .determine, inasmuch as the paper signed by the members of the board did not bind the county, whether the board of [686]*686supervisors liad done any other act adopting the change by which the county is bound. On this branch of the case the court instructed the jury as follows:
“2. If, however, you find from a preponderance of the evidence that the defendant, by its board of supervisors, afterward, at a regular meeting, ratified and adopted the acts of the said Carlisle and others, as specified in said writing, then it will be bound thereby, and you are instructed that if you, find from the evidence that the plaintiff, in the spring and summer of 1869, constructed said bridge after the plan as changed in the said writing; that said Carlisle and others signing said writing constituted a majority of said board of supervisors on the 7th of September, 1869, and that on the said 7th of September, 1869, after said bridge was built, the said board of supervisors, at a meeting then held, appointed a committee consisting of Joseph Carlisle, Jacob McCully and S. C. Dunn, then members of said board, to examine said bridge, %oith authority to receive or reject the same after such examination, and with instructions to report at the subsequent October session of said hom'd thereon, you may from these facts infer a subsequent ratification of said change in the construction of said bridge, as indicated in said writing signed by said Joseph Carlisle and others, and set out in the first cou,nt of the petition. ”
The italics are ours. Down to the italics the instruction is clearly right. The remainder of it, we think, is erroneous. It is clear that an acceptance of the bridge after its completion by the board of supervisors would constitute a ratification of the change in the plan of construction. A committee, however, appointed by the board to examine the bridge, with authority to receive or reject the same after such examination, might either receive or reject the bridge. And it would be only their determination to receive the bridge that would amount, on the part of the board, to a ratification of the change. It certainly cannot be claimed that if said committee should, after examination, determine to reject the bridge, that never[687]*687theless the board, by appointing the committee to examine the bridge, had adopted the change.
The instruction, therefore, is equivalent to a direction that from the appointment of a committee to examine the bridge and accept or reject the same, and to report their action to a subsequent meeting of the board, the jury might infer a report in favor of the acceptance of the bridge.
The evidence shows that the report actually made by the committee was adverse to the acceptance of the bridge at the contract price, and hence equivalent to a report rejecting the same, unless it could be had for less than the contract price. The contract price was one thousand four hundred and twenty-five dollars. The committee reported that they considered the bridge worth one thousand dollars, andno more, and that they were willing to receive it by paying Mallory that sum. This is equivalent to saying that they were not willing to receive it and pay one thousand four hundred and twenty-five dollars therefor. In other words, they say we will not take this bridge under the contract and at the contract price, because it is not built as agreed, but we are willing to make a new contract therefor, and to take it at one thousand dollars. Yet, notwithstanding this evidence, the jury are told that from the appointment of this committee to examine, and to receive or reject the bridge, they might infer a ratification of the change in the construction, as indicated in the writing signed by Joseph Carlisle and others. This writing signed by Carlisle and others fixes the price.of the changed structure the same as that agreed to be paid Snodgrass, to-wit, one thousand four hundred and twenty-five dollars. A ratification by the board of the change agreed upon in this writing would amount to an agreement to pay therefor the original contract price; hence, if a ratification of the change is to be inferred from the appoihtment of the committee referred to, the county must pay for the bridge one thousand four hundred and twenty-five dollars, notwithstanding the [688]*688condition . upon which the committee reported in favor of accepting the same.
Appellee concedes that the use of the bridge by the inhabit-' ants of the county would not, of itself, be an acceptance, and that the acts alone of the individual members of the board of supervisors would not bind the county. But he claims that a majority of the board of supervisors, when in regular session, and in all respects acting with authority, did receive the bridge after it was built.
It is claimed that there can be no such thing as a conditional acceptance; that there either was an acceptance or there was not. In other words, that there either was an unconditional acceptance, or there was no acceptance. And from this position appellee concludes that when the board undertook to make a conditional acceptance they in fact made an unconditional one, whereas we the rather conclude that, if there is no middle ground, by making a conditional acceptance they did not make an unconditional one, and hence they made no acceptance.
A little scrutiny of the position of appellee will, we think, show its unsoundness. And, for illustration, we will not go beyond the facts of this case. A board of supervisors contracts for the erection of a bridge on a public highway, according to a plan agreed upon, at a stipulated price of one thousand four hundred and twenty-five dollars. The contractor erects the structure after a plan entirely different. The mere use of the bridge by the public does not create any implied agreement on the part of the county to pay therefor. In order that there may arise an implied contract to pay for work, the benefit of which is received, the party to be bound must be in a situation where he is entirely free to elect whether he will or not accept of the work. Zottman v. San Francisco, 20 Cal., 106. The bridge in question being on a public highway, the county has no election but to permit the same to be used so long as it remains there.
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Day, J.
I. It is conceded that the bridge is not constructed in accordance with the original written contract with Snodgrass. .It is also conceded that the written assent of the various members of the board of supervisors to a change in the plan of construction does not bind the county. Respecting this the court properly instructed the jury as follows:
1. contract : supervisors. “The first question for you to determine is whether the defendant consented to the change in the construction of said bridge as specified in the writing signed by said Joseph Carlisle and others. That writing purports -^g the act 0f ^iie parties signing it individually, although supervisors, and on its face and of itself does not bind the county. ”
It is necessary, therefore, that there should be, by the members of the board of supervisors, as such board, some recognition of the right to mate such change in the plan. For, as the board might, before the bridge was erected, have agreed to a change in the character of a structure, so they might during the process of erection, or after it was completed, assent to the changes made.
Hence it became a very material question in this case to .determine, inasmuch as the paper signed by the members of the board did not bind the county, whether the board of [686]*686supervisors liad done any other act adopting the change by which the county is bound. On this branch of the case the court instructed the jury as follows:
“2. If, however, you find from a preponderance of the evidence that the defendant, by its board of supervisors, afterward, at a regular meeting, ratified and adopted the acts of the said Carlisle and others, as specified in said writing, then it will be bound thereby, and you are instructed that if you, find from the evidence that the plaintiff, in the spring and summer of 1869, constructed said bridge after the plan as changed in the said writing; that said Carlisle and others signing said writing constituted a majority of said board of supervisors on the 7th of September, 1869, and that on the said 7th of September, 1869, after said bridge was built, the said board of supervisors, at a meeting then held, appointed a committee consisting of Joseph Carlisle, Jacob McCully and S. C. Dunn, then members of said board, to examine said bridge, %oith authority to receive or reject the same after such examination, and with instructions to report at the subsequent October session of said hom'd thereon, you may from these facts infer a subsequent ratification of said change in the construction of said bridge, as indicated in said writing signed by said Joseph Carlisle and others, and set out in the first cou,nt of the petition. ”
The italics are ours. Down to the italics the instruction is clearly right. The remainder of it, we think, is erroneous. It is clear that an acceptance of the bridge after its completion by the board of supervisors would constitute a ratification of the change in the plan of construction. A committee, however, appointed by the board to examine the bridge, with authority to receive or reject the same after such examination, might either receive or reject the bridge. And it would be only their determination to receive the bridge that would amount, on the part of the board, to a ratification of the change. It certainly cannot be claimed that if said committee should, after examination, determine to reject the bridge, that never[687]*687theless the board, by appointing the committee to examine the bridge, had adopted the change.
The instruction, therefore, is equivalent to a direction that from the appointment of a committee to examine the bridge and accept or reject the same, and to report their action to a subsequent meeting of the board, the jury might infer a report in favor of the acceptance of the bridge.
The evidence shows that the report actually made by the committee was adverse to the acceptance of the bridge at the contract price, and hence equivalent to a report rejecting the same, unless it could be had for less than the contract price. The contract price was one thousand four hundred and twenty-five dollars. The committee reported that they considered the bridge worth one thousand dollars, andno more, and that they were willing to receive it by paying Mallory that sum. This is equivalent to saying that they were not willing to receive it and pay one thousand four hundred and twenty-five dollars therefor. In other words, they say we will not take this bridge under the contract and at the contract price, because it is not built as agreed, but we are willing to make a new contract therefor, and to take it at one thousand dollars. Yet, notwithstanding this evidence, the jury are told that from the appointment of this committee to examine, and to receive or reject the bridge, they might infer a ratification of the change in the construction, as indicated in the writing signed by Joseph Carlisle and others. This writing signed by Carlisle and others fixes the price.of the changed structure the same as that agreed to be paid Snodgrass, to-wit, one thousand four hundred and twenty-five dollars. A ratification by the board of the change agreed upon in this writing would amount to an agreement to pay therefor the original contract price; hence, if a ratification of the change is to be inferred from the appoihtment of the committee referred to, the county must pay for the bridge one thousand four hundred and twenty-five dollars, notwithstanding the [688]*688condition . upon which the committee reported in favor of accepting the same.
Appellee concedes that the use of the bridge by the inhabit-' ants of the county would not, of itself, be an acceptance, and that the acts alone of the individual members of the board of supervisors would not bind the county. But he claims that a majority of the board of supervisors, when in regular session, and in all respects acting with authority, did receive the bridge after it was built.
It is claimed that there can be no such thing as a conditional acceptance; that there either was an acceptance or there was not. In other words, that there either was an unconditional acceptance, or there was no acceptance. And from this position appellee concludes that when the board undertook to make a conditional acceptance they in fact made an unconditional one, whereas we the rather conclude that, if there is no middle ground, by making a conditional acceptance they did not make an unconditional one, and hence they made no acceptance.
A little scrutiny of the position of appellee will, we think, show its unsoundness. And, for illustration, we will not go beyond the facts of this case. A board of supervisors contracts for the erection of a bridge on a public highway, according to a plan agreed upon, at a stipulated price of one thousand four hundred and twenty-five dollars. The contractor erects the structure after a plan entirely different. The mere use of the bridge by the public does not create any implied agreement on the part of the county to pay therefor. In order that there may arise an implied contract to pay for work, the benefit of which is received, the party to be bound must be in a situation where he is entirely free to elect whether he will or not accept of the work. Zottman v. San Francisco, 20 Cal., 106. The bridge in question being on a public highway, the county has no election but to permit the same to be used so long as it remains there.
[689]*689Hence some voluntary act of acceptance upon the part of the board of supervisors is necessary, in order that the county may be bound to pay for the -work done. The board, through a committee appointed for that purpose, examines the bridge, and says to the contractor, “The bridge as constructed is worth but one thousand dollars; we are willing to receive it and pay you that sum. ” This act, appellee contends, is an unconditional acceptance, and that, although before it was done the county was not liable to pay for the bridge at all, yet after it was done the county became liable, even in excess of one thousand dollars, if it should be proved upon the trial that the bridge was worth more than that sum. This view, it seems to us, cannot be sustained. If the acceptance of the board is necessary to bind the county, and the board have the option to accept or reject, it must follow that they may make their acceptance subject to such conditions as they may see fit to impose.
II. The court further instructed the jury as follows:
2_._. ! “4. If, therefore, you find that of the committee, consisting of said Joseph Carlisle, Jacob MeCully, and S. C. Dunn, referred to in my last instruction as appointed by said board of supervisors, on the 7th of September, 1869, to examine, and receive or reject, said bridge, a majority, to-wit, Joseph Carlisle and Jacob MeCully, -on the 20th of October, 1869, filed their report in favor of receiving said bridge of said Mallory, at the price of one thousand dollars, you will next inquire whether the said board subse-. quently adopted the recommendation of said committee, and, if yea, whether the plaintiff received said sum of one thousand dollars in full satisfaction of his claim against said county for constructing said bridge. * * *”
The instruction then sets forth a number of facts, which the jury are told would not' constitute an acceptance of the one thousand dollars in fuE, nor estop plaintiff from recovering more.
[690]*690This instruction is erroneous, it seems to us, in that it makes the question whether plaintiff shall recover more than one thousand dollars to depend upon whether he received the thousand dollars in full satisfaction of his claim.
He was not, as we have seen, in a condition to recover anything, unless the county, by its board of supervisors, accepted the bridge. He could not compel them to accept. If, then, he could neither compel the board to accept the bridge, nor recover for constructing the same without their acceptance, it must follow that when they made their acceptance conditional upon his taking one thousand dollars therefor, the limitation of his recovery to that amount cannot be made to depend upon his receiving it in full satisfaction.
3_. width of triage. III. The Revision, § 822, provides that bridges must not be less than sixteen feet in width. Respecting this court instructed as follows :
“6. If, under my previous instructions, you find that the plaintiff, in other respects, is entitled to recover from the defendant in this suit, and you also find, among the facts developed -by the evidence, that according to the plan and specifications referred to in the first count of the petition said bridge was to be fourteen feet wide, and that the same was so constructed as to width, you are instructed that that circumstance will not affect the plaintiff’s right of action. ”
In giving this instruction the court did not err.
The action of the board in contracting for a bridge less than the statutory width was erroneous simply, and not void. Knowles v. The City of Muscatine, 20 Iowa, 248, and cases cited.
The views which we have already expressed determine the principal questions involved in the appeal, and render a consideration of the remaining errors assigned unnecessary.
Eor the reasons before given the judgment must be
Reversed.