30 N.H. 517 | Superior Court of New Hampshire | 1855
It was material to the plaintiff to show that the work done in this case was done in pursuance of his individual contract with the town. If not, the action could not be maintained. If done in pursuance and in performance of a joint contract, entered into by the plaintiff and Tebbetts with the town, this action could not be maintained. The evidence would not support the declaration. It would furnish the case of a variance.
The bond, given in evidence by Barrington, clearly tended to show the contract for working the road to be the joint undertaking of Davis, the plaintiff, and Tebbetts. It was executed by the plaintiff and Tebbetts to the town, and was conditioned to be void if they (Davis and Tebbetts) should build the road, as therein stated, to the acceptance of the selectmen. From the form and phraseology of the bond, and the manner of its execution, it was fairly to be inferred that the contract for building the road was the joint undertaking of Davis and Tebbetts, and not the individual agreement of Davis. It was such a bond in its terms and frame as might be expected, and as would usually be given to secure the performance of such a contract. It was an appropriate instrument to effectuate such an object.
It was material to the plaintiff, by evidence, to rebut the inference naturally to be made from the phraseology of the bond, and the manner of its execution, if by law he might. It was proposed to do that, by showing that Tebbetts was in fact a mere surety in the bond, and in that way to show that Davis was the real contractor alone, and that Tebbetts’
It was proposed to show by parol evidence that the real character in which Tebbetts executed the bond, was that of a surety for Davis merely. The evidence thus offered was ruled out, and the question is whether the ruling was correct.
The putting the name of Tebbetts to the bond, without more, was an equivocal act. It is well known that frequently instruments are signed in the manner in which this was, and yet some of the signers are mere sureties. It is not said in such case, upon the instrument, whether they aré sureties or principals. And as between the defendants, no doubt was ever entertained, we apprehend, that it was competent for them to show by parol their true relations to each other. It is believed, moreover, that it is only when the language of a contract is unequivocal, that it admits of no parol explanation of its terms and their meaning, when explanation is the object of the proof. It is important, however, to look at the precise object of the evidence offered in this ease. It was not offered to vary or change the terms of the contract in Davis’ bond, or to weaken its force, or to explain it, in order to change its legal effect or interpretation, or to limit its scope and extent. The purpose was to show a collateral fact, namely: the relation of the defendants to each other, and thereby to show somewhat the character of a contract outside of the bond, of which the bond furnished some evidence, although not conclusive, notin express terms, but by way of inference, from its terms and form. The evidence then offered, has not to encounter the objection, the validity of which no one doubts, that parol evidence is not admissible to vary, or explain, or limit a written contract between the parties in the litigation to be affected by it. As between the town and Davis and Tebbetts, it would not
Another and more important question remains for decision. That question is, whether the town is liable in this action, notwithstanding the special contract to build the road had not been fulfilled according to its terms, when the action was commenced. We think it cannot properly be holden that the use of the way by the public, after the action was brought, is competent evidence to show an acceptance of the road by the agents of the town, prior to that time. If the use be evidence of the acceptance of the way, anterior to the commencement of the use, to what period will it carry back the acceptance ? It is necessary for the purposes of the plaintiff that the acceptance should be shown to have been prior to the action. That period might be longer or shorter. And shall the use carry the evidence of the acceptance back to a period prior to the action, alike whether the use commences a month, or a year, or five years after action is brought ? We think such a view would be unreasonable. In fact, we think no principle can be found or stated upon which to hold that the acceptance was prior to the action, upon the mere fact of the public use appearing at a period soon after or remote from the date of the suit. It would be much more reasonable to hold that the use was evidence of an acceptance from such time after its commencement as would furnish reasonable ground to believe that the agents of the town had knowledge of it, and assented to it. But it is not necessary to settle the time from which the use is evidence of the acceptance, farther than to say it does not show it prior to its commencement. It would seem to be the doctrine in this State, and in other jurisdictions, that
But there is a class of cases in which the services of the person who may be employed to serve under a special contract, are, from their very nature, accepted from day to day, as the labor progresses, and where the benefit of the labor must necessarily be regarded as accepted, and the benefits thereof appropriated by the employer, who, notwithstanding he will not be liable upon the special contract, by reason. of its non-fulfillment, will nevertheless be liable to pay the fair price and value of the benefits resulting from the partial performance of the contract, over and above the amount of damage sustained by the breach, but never exceeding the contract price. ?
Of the latter class of contracts, is that of the contract of a party to labor for another in his employment, and in his service and business, for a specified period of time. In such a case, it has been holden in this State that a recovery may be had to the extent of the benefits of the labor to the employer, over and above the damage he may have sustained by the breach of the contract. Britton v. Turner, 6 N. H. Rep. 481. It is there said that “ when the contract is to labor from day to day, for a certain period, the party for
Whatever might be the views of the court as at present organized, in a case like that of Britton v. Turner, and however much, even, some may think it is to be regretted that the rule of law there laid down was allowed to obtain, still, considering that it has remained as the law of the State for nearly twenty years, and has never been overruled, and that while it has the strong feature of its direct tendency to the wilful and careless violation of express contracts fairly entered into, to lead to its condemnation and disapproval, it has also some features of advantage and strong justice to recommend it. We, on the whole, are not inclined to disturb the doctrines of that case, but to adopt and apply them.
It becomes important, then, in this case, to inquire to which class of contracts mentioned, the one under consideration belongs; whether it is of the character where the services may be rejected and their benefits refused, or where they are to be regarded as accepted from day to day, and not capable of rejection ?
And we are of the opinion that it falls within the latter class. The labor was performed in the business of the defendants. It was done in the construction of a road, which the town were by law bound to construct and keep,in repair, and what was done tended to that result, although the construction was not completed according to the plaintiff’s contract. The services in constructing the road were of a character not to be rejected, and the benefits of which were necessarily received by the town from day to day, in aid of a work which they were bound to perform, and which was their
The time of payment was, of course, the period of the completion of the job, no other time being specified; and it not being completed, was the plaintiff entitled to maintain this action, at the time of its commencement ?
It has been holden in this State that in such a case no action will lie until the time when, by the terms of the contract, money would become due, in case the contract were fulfilled. In this case, the contract was, of course, to be fulfilled in a reasonable time, no specified time for its fulfilment being fixed therein. If, then, it should appear that a reasonable time had not elapsed at the date of the suit, it may be found, upon investigation of the question, that the action cannot be maintained.
But that fact the case does not find, and no sufficient evidence is reported on the point, and we give no opinion thereon.
Verdict set aside.