114 Mass. 334 | Mass. | 1874
The plaintiff sues to recover for work done under a contract with the town. The defendant claims the right to recoup the amount paid by the town on a judgment in favor of Mrs. Brooks, for damages for an injury occasioned by a defect in the highway. The work sued for was done under a written contract by which the plaintiff agreed to make the excavations required for the laying of water-pipes in that town. It was provided by the contract that the plaintiff should at his own expense guard and light the trenches by night for the protection of travellers and their property, and should be liable and responsible for all damages that might occur from his neglect to comply with the requirement.
The action in which Mrs. Brooks recovered a judgment against the town, was for an injury suffered by falling in the night-time into the trench which the plaintiff had excavated in the performance of his contract. The plaintiff was notified of its pendency, and had liberty to assume its defence, and furnish any evidence he might see fit. He did in fact aid in the defence of the action At the trial, the only question submitted to the jury, as the ground of the defendant’s liability, was whether the trench was in fact properly guarded and lighted, with reference to its depth and location. It was ruled, without objection, that the town had the right to make excavations in the streets for the purpose of laying water-pipes, and no question was made as to the right of the town to locate and dig this trench. Brooks v. Somerville, 106 Mass. 271.
Upon these facts, the defendant is entitled to use the amount paid on the judgment by way of recoupment or set-off to the plaintiff’s claim. The sufficiency of the lights and guards provided by the plaintiff was the only issue submitted to the jury. The plaintiff must be treated as a party to that suit, and the judgment is conclusive upon him as to all facts in issue. Chamberlain v. Preble, 11 Allen, 370. The damages which the defend ant seeks to set off arose from the non-performance by the 'plain tiff of the same contract on whict he relies to maintain his action
It is too late, under the decisions of the court, to object that it is against public policy to allow the set-off claimed, or that the parties are to be treated as in pari delicto, so that neither is entitled to contribution or indemnity. Lowell v. Boston Lowell Railroad Co. 23 Pick. 24, 31. Boston v. Worthington, 10 Gray, 496.
But the plaintiff insists that in no event, under the terms of this contract, can the amount allowed in set-off exceed twenty per cent, of the balance sued for.
Under the contract, payments were to be made monthly, reserving twenty per cent, of the amount due until the completion of the work, “ as guaranty for the true and faithful performance of the contract.” And it was agreed that damages caused by the plaintiff’s negligence under the contract should be deducted by the defendant, and paid out of the twenty per cent, reserve. These clauses were intended for the defendant’s security. But we cannot interpret them as limiting the plaintiff’s liability for negligence under a previous clause, or as depriving the town of any other remedy which it might have for a violation of the contract.
Judgment for the defendant.
