44 Conn. 99 | Conn. | 1876
In view of the claims of the opposing parties in this suit with regard to the construction to be given to the contract which is the subject of the suit, it seems strange that either party could have been satisfied with the contract as it was drawn. The object they were seeking to accomplish was, the providing for a reasonable compensation to the plaintiff for an apprehended injury to his wall, carriage house, well and cellar, from the erection of the defendants’ dam. If the agreement was, as the plaintiff claims it to have been, one which created a perpetual liability on the part of the defendants to make good all the damage to his property as it should occur from time to time, a contract could easily have been drawn setting forth this agreement in unmistakable terms.
It appears that the plaintiff was willing to convey to the defendants the right to flow his land for a nominal consideration, but he desired compensation for, or security against, all damage to his bank wall, carriage house, well and cellar, which might be caused, and which there was reason to apprehend would be-caused, by water and ice in times of freshet, if the right„of flowage should be granted. It appears that the defendants were willing to pay a reasonable sum for such apprehended damage, but there was a difficulty in agreeing as to the amount. How great the injury probably would be was a matter of so much uncertainty, that all opinion in relation to it was but little more than speculation. It is easy to see that the parties entertained great difference of opinion on the subject, and could not agree as to the amount to be paid, else the right to flow would have been conveyed for a definite consideration, each party assuming the risk of the damages being more or less than the amount agreed upon.
In these circumstances the parties finally settled upon the contract now in question, leaving the damages to be determined thereafter as they should occur from time to time. The contract was made in the form of a bond, and a condition annexed, and it is this peculiarity of it which creates whatever uncertainty there is with regard to its construction. But when we consider that the plaintiff was conveying the right to flow for a nominal consideration, so far as the injury arising from the ordinary flowage of his land was concerned—was
In view of these considerations, let us read the contract in question. Omitting the bond, and the recital of the conveyance of the right of flowage, and the description of the property which was to be protected, it proceeds as follows: “Andt whereas the Ousatonic Water Company has undertaken, and does hereby undertake and agrees, to forever protect and maintain said wall, and said carriage house, and said wrell and cellar, against all injury and damage resulting from water and ice in said river while said dam shall remain standing; now if the said Ousatonic Water Company shall well and truly forever maintain said wall and said carriage house and said well and cellar from any and all damage by reason of water and ice from said river, and shall repair all injury that may result by reason of water and ice from said river, and fully protect and save said Tomlinson, his heirs and assigns, from all injury and damage that may result from water and ice from said river, then this bond shall be void; otherwise to remain in full force and effect in law.”
If we strike out from this language the clause “and does hereby undertake and agree,” the remainder manifestly is nothing more nor less than the condition of the bond; and in that case the plaintiff’s remedy would be on the bond.
We think that, taking into consideration the relation of the parties, and the surrounding circumstances to which we have alluded, this clause was intended to create, and did create, an independent, original obligation on the part of the defendants; that is, independent of the rest of the instrument, and original, inasmuch as an obligation of this character had not been previously entered into in writing.
The conclusion to which we have come may render it difficult to soe what object the parties had in view in making the bond. They may have supposed the sum therein named would cover all the damage which would ever be done to the property, but, in order to provide against every possible contingency, may have made the obligation in its present form. Or they may have considered the bond as a continuing one to meet recurring injuries, and hence have designed, for purposes of security or otherwise, the two obligations to be co-extensive.
We express no opinion in regard to the bond, whether it would be satisfied by damages amounting in the aggregate to one thousand dollars; or whether it is a continuing bond, admitting of being broken from time to time, so long as the dam remains on the stream.
We advise the Superior Court that the replication is sufficient.
In this opinion the other judges concurred.