71 A. 939 | Conn. | 1909
The plaintiff brought his action against William Mella Company and recovered judgment against them. Claiming to have secured, by process of foreign attachment inserted in his writ, a debt due to that firm from *617 the town of Torrington, he now seeks, on scire facias, to obtain a judgment against the town for the amount of his judgment against the original defendant. The question at issue between the parties upon the trial was whether, at the time suit was brought against Mella Company, July 19th, 1906, any debt was due to that firm from the town. In the trial court a verdict was directed for the defendant. The plaintiff claims that this was error and that he is entitled to a new trial because thereof.
To entitle him to a new trial the record must disclose that there was evidence from which the jury would have been warranted in finding proven every fact essential to the plaintiff's recovery, and also disclose no proved or undisputed fact which would prevent his recovery.
He claimed to have proved that at the time the town was factorized it was indebted to Mella Company for work performed in grading and improving one of its highways known as the Daytonville road. At a former trial of the case he claimed that this work was done at the request and by direction of the defendant's selectmen, no price being fixed for the same, and that the town was bound to pay therefore what the work was reasonably worth. Kelley v. Torrington,
If the plaintiff failed to perform his contract he could not recover under it, but if there was a contract which the defendant wrongfully prevented him from completing, he could recover for the work done.Connelly v. Devoe,
Upon the trial the following facts were proved and not disputed: The defendant appropriated $9,000 to improve its highways under the statute in question. The Daytonville road was duly selected as one of its roads to be improved. Calls for bids were duly advertised and Mella Company were bidders, and the lowest bidders, for the contract. The contract was awarded to them. Supposing that they would be able to furnish the required bond, they at once entered upon the work without having executed either the contract or bond required by the statute. One of the partners shortly after retired form the firm, and the others were unable to procure a bond. The defendant would provide them with no money with which to pay their help, the help struck because they were not paid, and the firm abandoned the work. No contract was ever executed by the firm, the selectmen and the highway commissioner, and no bond was ever given. It was, however, claimed by the plaintiff, but disputed, that the selectmen waived the giving of the bond, and that Mella Company signed and tendered to the selectmen a contract such as the statute requires, which had been prepared by the highway commissioner when the contract was awarded. He claims that these disputed questions should have been submitted *620 to the jury. As already stated, the selectmen had no power to waive the giving of the bond, and they were not required to sign the contract, if tendered, unless it was accompanied with the bond. The bond was required as security for the faithful performance of the contract by the contractor, and the selectmen could not be asked to bind the town to the terms of the contract until the contractors also were bound. There was nothing in these claims which could properly have been submitted to the jury.
The record thus shows that there was an entire absence of evidence to go to the jury to sustain the plaintiff's claim that there was a contract between the town and Mella Company. The contract not being proved, the jury could not be asked to find that anything was due from the town to Mella Company under it, or for a breach of it.
The tracks of the Torrington and Winchester Street Railway Company were located upon the highway which was improved. The plaintiff claims that Mella Company did work not called for by the contract and not belonging to the town, in straightening and changing the grade of the road-bed and safeguarding the tracks of this railway. If they did work not belonging to the town to do, the selectmen had no authority to direct them to do it, and the town is not liable for it. Kelley v. Torrington,
The railway company, as an inducement to the town to select the Daytonville road for improvement, agreed with the town to pay one half of its share of the expense of the improvement, and afterward paid it. It is claimed that this was a fraud upon the State; that the payment was made for changing the grade of the tracks, and that the contractors were entitled, out of this money in the hands of the town, to payment for the work claimed to have been done for the railway company. While such an arrangement as is thus suggested could not be upheld, no good reason is suggested why a street-railway company, a manufacturing company, a driving club, or any other person interested in having a road improved, may not properly agree to bear a portion of the town's expense if such improvement is made. It does not affect the State in any way. The improvement cannot be made with the State's aid unless the highway commissioner approves the selection of the road; and the cost to the State is not affected by the fact that a portion of the town's burden is borne by private individuals. The contract between the town and the railway company is made a part of the record, and disproves the claim that the town undertook to make changes in the tracks which properly belonged to the railway company. As the payment was not for work done by the town or the contractors which belonged to the railway *622 company, the claim that Mella Company did extra work for which they were entitled to pay, either from money paid by the railway company or otherwise, presented no question for the jury. As there was thus no evidence to sustain either of the plaintiff's claims, a verdict was properly directed for the defendant.
The appeal raises several questions of evidence which it is unnecessary to discuss, as they do not relate to the facts decisive of the case, already considered, and would only be of interest to the parties in case of a new trial.
It is claimed that the court erred in giving the defendant judgment for costs, upon the ground that it failed to appear in court in the original action and disclose whether it had any effects of the original defendants in its possession or was indebted to them, and failed to excuse itself form so doing by disclosing to the officer at the time the factoring process was served upon it, as provided in § 882 of the General Statutes. But the finding does not show that the defendant failed to appear in court and disclose, and the officer's return, upon which the plaintiff relies as showing a failure to disclose to the officer, says only that the defendant "failed to disclose that it was indebted" to Mella Company. This does not prove that it failed to disclose that it was not indebted. It does not appear form the record, therefore, that the judgment for costs was improper.
There is no error.
In this opinion the other judges concurred