The opinion
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BbogdeN, J.
Tbis cause was considered by tbe Court upon a former appeal, wbieb is reported in 193 N. C., p. 100. Exceptions were duly filed to tbe report of tbe referee and tbe cause was thereafter beard by Judge Stack in term.
Judge Stack made tbe following findings: “And it is found tbat tbe commissioners by tbeir action and tbe action of tbe engineer, and by tbeir acquiescence in tbe written statement of plaintiff, and by requiring plaintiff to build tbe road upon a, new route, contracted to compensate bim for bis additional expense and loss by reason of sucb requirement.”
Tbe opinion of tbe Court in tbe former appeal, remanding tbe case, stated: “Tbe only question, therefore, to be determined is whether there is evidence to support tbis finding of fact, tbat tbe board of commissioners made a supplemental contract with tbe plaintiff.” And, further, “tbe cause is remanded to tbe Superior Court of Yancey County for specific findings of fact as to whether tbe board of commissioners of said county, in tbeir corporate capacity, made tbe supplemental contract or authorized tbe chairman or any other person to make it.”
Tbe plaintiff testified in tbe former bearing tbat a supplemental contract was made by tbe commissioners in tbe engineer’s office. It did not appear tbat tbe commissioners were acting in tbeir official capacity in making sucb contract or merely discussing tbe matter informally as individuals. If tbe commissioners at tbat time were acting in tbeir official capacity, then tbe testimony of plaintiff tended to establish a valid agreement. From tbe present bearing, pursuant to tbe order remanding tbe ease, Judge Parker, as will appear from tbe judgment rendered, found as a fact tbat tbe board of commissioners were acting in tbeir official capacity at tbe meeting at which plaintiff testified tbe supplemental contract was made. Therefore, there was evidence to support Judge Stack’s finding in tbe former appeal. Tbe opinion in tbe former appeal further declared: “If tbe board of commissioners of Yancey County were duly assembled and made tbe alleged agreement with tbe plaintiff, of if tbe board of commissioners authorized its chairman or any other person to give a letter of instructions directing tbe work to be changed, and agreeing to pay a fair compensation therefor, then tbe plaintiff is entitled to recover tbe amount allowed.”
At tbe present bearing, it having been found tbat tbe, commissioners were duly assembled in tbeir corporate capacity, 'and tbe plaintiff having testified at tbe former bearing tbat a supplemental contract was made at sucb meeting, it necessarily follows tbat there was evidence to support Judge Stack’s findings, and tbe judgment rendered by bim must stand.
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In finding tbat no supplemental contract bad been made, Judge Parker extended tbe inquiry beyond tbe limitation prescribed in tbe former opinion.
Upon a consideration of tbe entire case tbe judgment of Judge Stack at tbe former bearing is affirmed, and tbe judgment of Judge Parker, rendered upon tbe present bearing, is affirmed, except to tbat portion of said judgment finding as a fact tbat tbe board of commissioners of Yancey County did not make a supplemental contract and did not authorize tbe chairman or any other person to make it. This portion of Judge Parker’s judgment is reversed for tbe reason stated herein.
Modified and affirmed.