State v. Pollard

89 Ala. 179

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

STONE, C. J.

The contract made by Pollard, dated February 28, 1876, with Bass, warden of the penitentiary, is, in all respects material in the present investigation, identical with the one construed in Comer v. Bankhead, 70 Ala. 136. Pollard paid all the hires due from him, for the labor of convicts he had the services of, during the one year that contract was lawful and binding. The present suit was upon the bond he executed, with sureties, for the faithful performance of that contract on his part, and claims a recovery for convict labor he was permitted to employ after the expiration of the first year.' The complaint consists of a single, special count on the bond. The court gave the general charge in favor of the defendants. There was no error in this. Under no sound canon of interpretation can the obligors of the bond be held liable for the performance of any part of Pollard’s contract which was illegal. In Comer's Case we held, that such contract was illegal and inoperative for any term beyond the first year; and the same rule must be applied to the contract in this case. Sureties may stand on the very letter of their contracts; and an agreement which the law does not authorize to be made, can not be the foundation of a recovery. Whether Pollard can be made to pay for the services he had the benefit of, on a complaint properly framed, is a question not raised by the present record.

Affirmed.

McClellan, J., not sitting.