Summary
Assumpsit in two special counts, to which were added the common counts. Plea, non assumpsit, and trial by jury.
The first count was, in substance, as follows:—
In a plea of the case for that, on the ninth day of September, 1830, at Royalton, in the county of Windsor, there was a bridge across White river, near the village of Royalton, to accommodate travellers, &c., which had before been erected and supported by said town of Royalton as a part of the public highway leading from said village to Pomfret, in said county, which bridge said town of Royalton were bound to keep in repair; that, on said ninth day of September, 1830, at said Royalton, it was mutually agreed, by and between ^le plaintiffs and defendants, that the said defendants should lay out and support their turnpike road across said bridge and support the same as a part of their said turnpike road, and that the plaintiffs would pay the said defendants, towards the gUpp0r(. saj,j bridge, twenty-five dollars annually for the term of twenty years, and in pursuance of said agreement the said defendants did lay out their said turnpike road across said bridge, as aforesaid, to wit, at said Royalton, on the same ninth day of September, 1830, and kept said bridge in repair from year to year for several years, until the tenth day of March, 1838, when the defendants suffered the the said bridge to decay, and remain without repair, and become of no use, when it became absolutely necessary to erect a new bridge, at the place where said bridge had stood, and where it was when the contract aforesaid, between the plaintiffs and defendants, was made as aforesaid, and where said bridge had become so decayed as aforesaid; and said defendants neglected and have ever since neglected to erect a new bridge or to repair the one thus decaying as aforesaid. And the plaintiffs aver that they have ever performed all things in said contract on their part to be performed; that they paid to the said defendants, twenty-five dollars annually towards the support of said bridge, for each and every year, from the making of said contract, until the ninth day of September, 1838, when the said defendants had wholly ceased to keep said bridge in repair, and wholly neglected to erect a new bridge in its stead, and altered the survey of their road, and so laid out the same as to carry the travel, upon said turnpike road, to and across said river upon a new bridge erected by the plaintiffs across said river, more than a mile distant from the said bridge which the defendants so agreed to keep in repair as aforesaid, and the plaintiffs, in order to accommodate the necessary travel to and from the said village, and said Pomfret, across the said river at the place where said bridge, so to have been repaired, was at the time of making the contract aforesaid, have been under the necessity of erecting, and have erected, a new bridge, at the place last aforesaid, in doing which they have expended much labor and large sums of money, to wit, to the amount of $700; to wit, at Royalton aforesaid, on the day and year last aforesaid, of which the said defendants then and there had notice.
Second count. For that,.at said Royalton, on the ninth day of September, 1830, there was one other bridge across said river, on the road leading from the village in said Royalton southward to Pomfret, which last said bridge was erected by the inhabitants of said Royalton, and which they were holden to keep in repair, and, at Royalton aforesaid, on the day and year last aforesaid, in consideration that the plaintiffs then and there promised the defendants that they, the plaintiffs, would pay to the defendants, towards the support of said bridge, twenty-five dollars, annually, for the term of twenty years, the said defendants promised the plaintiffs that they, the said defendants, would lay out and support their turnpike road across the bridge last aforesaid, and would support said bridge as a part of their turnpike road during said term of twenty years, which the defendants have wholly neglected to do, by reason of which the plaintiffs have been obliged to expend and have expended large sums of money in repairing said bridge and in erecting a new bridge in its stead, &c., to wit, the sum of $!700, of which the defendants had notice.
On the trial in the county court, the plaintiffs offered in evidence a copy of the records of the town of Royalton, showing that at a meeting of said town, duly warned, held on the 9th day of September, 1830, the following vote was passed, viz:—
‘ Voted, that if the Royalton and Woodstock turnpike com- ‘ pany will lay out and support their road across the bridge £ over White river near Royalton meeting house, and support £ said bridge as a part of said turnpike, the town of Royalton £ will pay the sum of twenty-five dollars, annually, for the £ term of twenty years, to said company towards the support 1 of said bridge.’
The plaintiffs also offered in evidence a paper purporting to be a copy of a contract, recorded in the town clerk’s office in Royalton, made between Royalton and the defendants, of the following tenor;—
£ Whereas, the town of Royalton, at a town meeting £ holden on the ninth day of September, 1830, voted (recitc ing the vote of the town above set forth.) Now, as sole £ director of said turnpike company, I hereby accede to the proposition contained in said vote arid do hereby, as such director, obligate and bind said company to lay out and support their road across the said bridge and support said as Part sa^ turnpike, as is in said vote mentioned. Edwin Edgerton, director of the
‘Royalton and Woodstock Turnpike company.’
The defendants objected to the admission of this paper. The plaintiffs then called Edwin Edgerton as a witness to prove' that such a contract was executed between the parties, relating to said bridge. This testimony was objected to by the defendants, on the ground that the contract itself should be produced or its loss first proved. The court permitted the witness to testify that he once made such a contract, but not to testify to its contents. The plaintiffs then offered a book of records of the town of Royalton, in which the contract appeared to have been recorded, accompanied with testimony that search had lately been made in the town clerk’s office of Royalton and among the papers of the town treasurer and also among the papers of the selectmen and no such contract could be found. There was no testimony tending to show that said contract was ever in either of those places, except that the records of said town showed that such contract was recorded in the town clerk’,s office. The defendants objected to the book of records but it was admitted.
The plaintiffs offered in evidence the records and by-laws of the Royalton and Woodstock turnpike company, showing that such by-laws authorized the appointment of a director, or three directors, as a majority of. said company might deem necessary, who should have power to make all necessary contracts in behalf of said company, for the purpose of carrying into effect the purposes of the grant; and further showing that at the annual meeting of said company, duly warned, held on the first Monday of January, 1830, said Edgerton was appointed sole director of said company for the year next ensuing, and that, at said meeting, a vote was passed appointing said Edgerton a committee to lay out and alter the road of the company in such place or places as in his opinion might be expedient for the year ensuing. These records and by-laws were objected to by the defendants but admitted by the court.
The plaintiffs then called said Edgerton to prove the contents of said written contract, to which the defendants objected, on the ground that the plaintiffs had not proved its loss, or given the defendants notice to produce it; but, as it did not appear that the original paper Was ever in the custody of the defendants, the objection was overruled, and the witness testified that he, as sole director of said turnpike company, executed such a contract as was found recorded in the record book of the town of Royalton, as above stated.
The plaintiffs also introduced testimony tending to show that they had annually paid the defendants twenty-five dollars as alleged in their declaration.
The plaintiffs then introduced testimony tending to show that the bridge was out of repair in the fall of 1838, and winter and spring following, and that on the 2d day of May, 1839, notice was given to Gardner Winslow, who was sole director of the said turnpike company, that said bridge was thus out of repair; that on the 14th day of May, 1839, the town of Royalton held a town meeting at which they directed the selectmen to put said bridge in a good state of repair; that on the 5th day of the next July the town of Royalton, by their selectmen or committee,commenced repairing said bridge, and that since September, 1838, the defendants had done nothing towards the support of said bridge. There was no proof that the town of Royalton ever paid the defendants anything, after the annuity which fell due in September, 1838.
The plaintiffs further introduced evidence tending to show that the defendants, by their directors, changed their turnpike road and carried it across the river near the house of Jacob Fox, in Royalton, and carried it overa bridge erected by said town in 1837. This was done on the 26th day of November, 1838, and from that time forward the defendants ceased using the bridge at Royalton village. There was also evidence tending to show that when the contract was made, the old turnpike bridge at Fox’s was gone and that the bridge below the village was old and the defendants were obliged to build and did build a new bridge, two reaches in 1831, and one other in 1832, and that on the 14th of May, 1839, the bridge required to be rebuilt; also that the bridge at Fox’s, which the town had built in 1837, was in repair.
The defendants requested the court to charge the jury, that if they found that the defendants made such a contract as testified to by Edgerton, and that the defendants supported and maintained said bridge up to November, 1838, when the road of defendants was altered and thus the use of the bridge was discontinued, it was a fulfilment of the contract on their part and the plaintiffs could not recover; that if they believed that the plaintiffs, by their selectmen or committee, after the meeting of said town in May, 1839, went on in conformity with the vote of said town and repaired said bridge, and have ever since used it as a public bridge and have from time to time repaired it as occasion required, it was an abandonment of the contract between the parties, by mutual consent, and the plaintiffs could recover for nothing done since said town meeting in May, 1839 ; especially if they found that the town had not paid them or offered to pay them any thing since September, 1838 ; that, in any event, the plaintiffs could not recover anything unless they first notified the defendants that the bridge was out of repair, and requested them to put it in repair. The court were also requested by the defendants to lay down some rule of damages in case the jury found for the plaintiffs. And the court did charge the jury, that if they found the contract proved as alleged in the plaintiffs’ declaration, the plaintiffs were entitled to recover such sum, as, from the evidence submitted, they should judge would, make the plaintiffs good for the damages they had suffered, by reason of the defendants abandoning the contract and leaving the bridge upon the town in such a condition as to require rebuilding ; that the jury would limit their inquires to the time when both the parties ceased in fact to act under the contract; that if the bridge was out of repair, the defendants were bound to know it and make the necessary repairs; that, if they believed the evidence submitted, the defendants were under contract to maintain the bridge; that if they found that both parties went on under the contract for eight years, and that Royalton paid $25.00 per annum during that time, the defendants were bound to fulfil their part of the contract, and that it would not be just to cast the burden of supporting the bridge upon the town ; that they would take into consideration the circumstance that the defendants had laid their road over the bridge at Fox’s, which bridge was built by the town, and, in view of all the evidence return such a verdict as they thought • the justice of the case requires.
The jury returned a verdict for the plaintiffs and the defendants excepted.
The paper, purporting to be a copy of the contract made by Edgerton, as director of the turnpike company, was improperly admitted by the county court.
This paper, which only purports to be a copy of a paper, is certified by the town clerk to be a true copy of the original as found in the book of records in Royalton town clerk’s office.
The paper recites the vote of the town, and then an acceptance of the proposal as made by the town in that vote, by Edgerton, the director of the turnpike. But the paper is without date, and was evidently made and signed sometime after the date of the vote.
Such acceptance does not prove a contract made the 9th of September, 1830, and was inadmissible, being a copy of a copy, without any proof that the first was a true copy.
It was not a paper proper for record in the town clerk’s office, and being there recorded, is no proof that it was a true copy.
It is nowhere shown that the warning for the town meeting on the 9th of September, 1830, contained an article, that this subject was to be acted upon. This vote is therefore void and the record of it is not evidence in the case.
The paper showing the contract, and the evidence of Mr. Edgerton, ought not to have been admitted, because there was no proper proof of the loss of the original paper. The copy of that paper and the vote of the town, taken together, do not prove the contract, as alleged in the first count, to have been made on the 9th of September. And being a special promise, the proof must sustain the contract as alleged. And the time of making it is material.
The contract was not consumated till the proposal made by the town was accepted, and the certificate’implies that it was accepted after the day of the meeting.
Even if the papers were properly admitted, they do not support either of the special counts in the declaration. The first count states that the parties mutually agreed, &c,, that the defendants would lay their road across the bridge, (as we read it,) twenty years ; and that the plaintiffs would pay defendants $25.00 annually for the term of twenty years, that is, that there were mutual and independent contracts, and each the consideration of the other.
The second states the same thing more formally, that, in consideration that plaintiffs promised to pay defendant $25.00 annually for twenty years, defendants promised plaintiffs that they would lay out the road across the bridge and support the bridge for twenty years.
But the vote or proposal of the town, which the director of the turnpike accepted, was not — that if the corporation would promise, or had promised to lay out the road and support the bridge, that plaintiffs would pay, &c., but if the turnpike company would actually lay out' the road, across the bridge as a part of their road, and actually support the bridge, plaintiffs would pay the $25.00 annually for twenty years; thus making the contract of plaintiffs actually dependent on the performance of the contract on the part of defendants. If the contract was as the declaration states, we could annually sue for the $25.00 whether we performed on our part or not. And, as the rule of damages might be different, each might have his remedy without regard to performance on the other side. Surely this will not be pretended.
It would seem that plaintiffs’ counsel, at least, partly understood the contract in the same way, for he has taken much care to aver performance on the part of plaintiffs, and, at the trial, to establish the fact. And it is certain that the parties so understood the transaction, for the defendants laid the road across and supported the bridge as long as it was thought to be for their interest, and then laid the road elsewhere. And the plaintiffs ceased to pay the annuity. The contract then — that is, 26th of November, 1838 — came to an end. The defendants have not stipulated to support the bridge for any given number of years, and, as appears by the contract, had a right to cease the support of the bridge, and alter the road at any time, and the plaintiffs duty to pay ceased at the same time.
The plaintiffs then in the summer of 1839, as their duty was, went on and built a new bridge, after the contract was at an end, and were not at expense before.
This view of the subject, if correct, and we are confident it is, disposes also of the two general counts. '
. . There is another view or this action more fatal than any yet presented. It is this : — The town of Royalton, even if the warrant for the meeting had an article mentioning the subject matter to be acted upon (which it did not,) had no authority to bind itself to pay money for twenty years to come. It might perhaps bind itself for one year. Stetson v. Kemp ton, 13 Mass. 272.
The proposition, both as being without a proper warning on the subject, and as being what the inhabitants had no right to offer, was void. And being a void agreement, if acceded to by defendants could be no consideration for a contract on the part of defendants.
Again, if the contract is construed as we think the declaration states it, and as the court by the charge seem to have understood it, i. e. to lay the road and keep it there, and support the bridge for twenty years, the corporation or the director had as little right to accept the proposition as the town had to make it.
The corporation could bind itself for only one year. The corporation has a right to lay, and from time to time, to alter the road. And the director could neither bind himself, the corporation, nor his successors in office, to keep the road in any place, nor support any particular bridge for any given time whatever.
We would ask, by what authority either party could make the contract which the plaintiffs aver they did make ?
The court charged the jury that if they found the contract proved as alleged in the declaration, the plaintiffs were entitled to recover such sum as would make them good for the abandonment of the contract by defendants. That if they found the contract proved, and that the parties went on under it for eight years, and the town paid $25.00 per annum, during that time, the defendants were bound to filfil their part of the contract, and that it. would not be just to cast the burden of supporting the bridge upon, the town after that time.
As it does not appear, in the bill of exceptions, that any evidence was given of the expense of building the bridge in 1839, the damages, or some part of them, must have been given for the non-performance of the contract subsequent to 1839.
On the whole it is quite impossible for the court to do less than grant a new trial.
1. We are unable to discover any validity in the objections to the copies from the town clerk’s records for Ihe purpose of showing where the original contract was when it was last seen, and thereby discover where to search for it, introductory to proof of its loss and its contents.
2. The loss was sufficiently proved to admit the proof of the contents of the written contract.
3. No notice was necessary to the defendants to produce the original contract, for there was no evidence of its ever being in their possession. Edgerton was sole director, and signed the contract as such.
4. The by-laws and records of the defendants show that Edgerton had sufficient authority to make such a contract; and their acting under it, and having the benefit of it eight years, furnishes ample confirmation of his act in making the contract.
5. The charge to the jury was correct. The contract was mutual for twenty years. And when the town had erected a new bridge, and the defendants moved their road from its former route and placed it over the new bridge, and stopped repairing the old bridge, there was a failure and refusal of the defendants to perform the remainder of the contract on their part; and threw the burden of repairing the old bridge upon the town, against their will. Every thing concerning it was as much within the knowledge of the defendants as of the plaintiffs ; and yet plaintiffs did give notice of this want of repair to the sole director, as was proved on trial.
Neither party had a right to abandon this contract without the consent of the other. And the town making these repairs, when obliged to do it on account of the neglect of the defendants, is very far from being evidence of an abandonment of the contract by the town.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
