14 Vt. 311 | Vt. | 1842
In regard to the question of variance, it has been urged that it is unimportant, as, at all events, the general counts, which are found in the declaration, are suffi- • . .. ’ mi * ’ , cient to justify the recovery. 1 hat is true, when the terms of the special contract have been performed by both parties, so that nothing more remains to be done but the simple duty of paying for money, or labor, or goods, &c. But that is not this case. Here the claim, on the part of the plaintiffs, is founded expressly upon the non-performance of the special contract, and sounds in damages therefor wholly. In all such cases the declaration must be special, and if there be a variance it is fatal.
We think, however, that there is no variance in the present case. The first count, after a very long inducement, in stating the obligation, adopts very nearly the words of the contract itself. ■ This is sometimes sufficient and sometimes not. That depends upon the degree of precision and certainty with which the contract is drawn. All contracts, however vague and uncertain in their import, when brought before courts, must be enforced in some way, unless they are so imperfect that it is apparent either that the minds of the parties never did meet, and so no contract was made, or else that the parties omitted such parts of the writing as to leave it mere conjecture what was intended. In all other cases courts will put such construction upon the contract as will, most probably, all things considered, coincide with the expectations of the parties, at the time of entering into the contract. But in regard to a declaration, it should be certain to a common intent, and where the contract is not so it becomes the duty of the pleader intelligibly to express that view of the contract upon which the plaintiff’s claim is -founded. If this is not done, the declaration will be bad upon demurrer, and many times on motion in arrest of judgment. It could hardly be said, with propriety, that such a case presented any question of variance, for the declaration, instead of being, as it should be, a description of the contract, in the language of the law, is a description of it in its own language; but it is not, on that account, any less a description of it.
But, in the second count, the plaintiffs have declared upon
In regard to the right of towns to make such contracts we entertain no doubt. It is true, indeed, that towns can only bind themselves by such contracts as come within the scope of the legitimate objects of their creation. In regard to these objects, their discretion, in order to consist with the degree of freedom necessary properly to consult their own interests, must be, in a great measure, unlimited. One of these objects is the maintaining of public highways. They might, no doubt, contract with an individual to build a road or bridge, and to repair it, or to warrant it to stand, without repair, for any reasonable number of years, for a stated sum, at once, or by instalments, or for a specified annuity. And that case is, in principle, the same with the present. Such a course, in regard to building bridges, is not an uncommon one, and, to my knowledge, its legality has never been questioned. It
In regard to the authority of the defendants to enter into such a contract, we think it is precisely commensurate with that of towns, so far as respects the building and repairing of their road, which is the object of their creation. We do not perceive any good reason why such a contract as the present, with a view to save some portion of the expense of supporting an expensive bridge upon their road, would not come legitimately within the range of their discretion. If courts should undertake to place any very nice, certainly any very narrow, limits upon the exercise of such a discretion, either by towns or turnpike corporations, it would be likely to defeat the object of conferring such powers. We do not say it has no limits, but only that they are far beyond the boundaries t,o which this contract leads.
The power of the director to make the contract on the part of the defendants, depends upon the by-laws of the corporation, which are the statutes limiting and defining the powers of all private corporations, with one qualification, that they be not inconsistent with their several charters. The director, who made this contract, was the sole director for the year. By the by-laws, he had authority ‘ to make all ‘ necessary contracts, on behalf of the corporation, for the pur- £ pose of carrying into effect the objects of the grant.’ He had, in express words, during his term of office, the entire power of the corporation, which, we have considered, was sufficient for the purpose of making this contract.
There are two other points in the case, upon which we have had more difficulty. We do not perceive how there was any very satisfactory evidence of the loss of the original written contract. It is true search was made where this contract would most likely have been, but there was no legal evidence that the contract ever was in fact in either of the places where search was made. It is true, too, that what purported to be a copy of it was found on the town books, in the hand-writing of the clerk, perhaps. But the clerk was not called to verify the copy, upon oath. If he had been,
The rule of damages, in this case, should have been to give the plaintiffs the difference between what they were to pay the defendants and the probable expense of performing the contract, and thus assess the entire damages for the remaining twelve years. This is a plain and obvious rule, and one not very difficult to explain to the comprehension of a jury. In looking into the charge of the court below, it is not easy to say precisely what rule the court did intend to lay down. It is certain it is not the one now given. In one particular it would seem to have been more favorable to the defendants than it should have been, of which they cannot complain ; but, in another point, it might operate seriously against them. I mean the jury being instructed to take into the account, in assessing damages, that the defendants had laid their road across the plaintiffs’ bridge at another place of the river. It is not explained how this was expected to affect the damages. It is of course uncertain how it did affect them in the mind of the jury. And as it is certain, from the present state of the case, that this circumstance lay wholly out of the range