Dudley v. Kennedy

63 Me. 465 | Me. | 1874

Appleton, C. J.

The plaintiff alleges in his writ and in substance proves that, being the owner of two scows, he had contracted with the A. & W. Sprague Manufacturing Company to transport in said scows upon the Kennebec river, rocks, gravel &c., from its banks above the dam of said company to their dam, to be used for ballasting the same; — that the defendant had obstructed said river, which was a navigable one, by constructing a boom across the same, so that he could neither pass nor repass with his scows between said dam and the place from which he had engaged to transport rocks, gravel, &c.; that he was then and there ready to transport the same and requested the defendant to remove said obstruction which he neglected and refused to do, whereby he was unable to pass and repass with his scows and to perform his contract, and was thus deprived of the employment of his scows, and obliged to remain idle for the term of twenty days or more ; for all which loss and damage he seeks to recover compensation in this suit. .

It is not denied that the Kennebec is a navigable rivei’, nor that the defendant constructed his boom across the same, thus preventing the public from passing and repassing over its waters.

It is well settled law that the obstruction of a navigable river is a public nuisance for which the person so obstructing is liable to indictment. So any person specially injured by such obstruction may maintain a special action on the case to recover damages for the loss by him sustained. Brown v. Watson, 47 Maine, 161; Dobson v. Sutton, 58 E. C. L., 991. Here the plaintiff is proved to have sustained special damages over and above those inflicted upon the general public.

It seems that at one time the defendant promised to pay the plaintiff for the damages arising from the obstruction to navigation caused by his boom. But the plaintiff subsequently made a demand for a passage for his scows, to which the defendant replied, “there is no need of demanding a passage for your boats, because what I have seen of the collectors (of .logs) are willing to do what is right. This thing will be settled without any trouble.” The defendant, when afterward called upon, refused to make any compensation, saying that he had been ordered not to pay a cent damage, and should not.

It is insisted that a settlement for damages has been shown, but such is not the case. The plaintiff made a demand to pass with which the defendant did not comply. Whatever promise the defendant may have made, he absolutely refused to perform the same. Here is no accord and satisfaction. Instead of that there is a denial of satisfaction. Accord and satisfaction to constitute a legal bar to an action must be full, perfect and complete. Clarke v. Dinsmore, 5 N. H., 137. An unexecuted agreement to pay is not payment. Accord without satisfaction is no answer. Coxon v. Chadley, 3 B. & C., 591. An accord, to be available as a defence, must be fully executed. A mere readiness to perform is not enough. Blackburn v. Cruisby, 41 Penn. St. R., 97.

Exceptions sustained.

Cutting, Dickerson, Barrows, and Yirgin, JJ., concurred.