Walker v. Inhabitants of Fitchburg

102 Mass. 407 | Mass. | 1869

Colt, J.

It was not in dispute at the trial, that a definite portion of the contract price, with a small sum besides for work outside the contract, was due to the plaintiff, which he would be entitled to recover if he had fulfilled his agreement. It was admitted that the road, which was to be built as part of the contract, was properly constructed, and that the plaintiff was entitled to recover the item charged for work outside the contract. The only contest at the trial, therefore, was in reference to the performance of that part of the contract which required the sinking of a new channel, into which the water of the Nashua River might be turned.

The defendants offered evidence of the difference in value of the channel as left by the plaintiff and as it would have been if sunk as the contract required. And instructions, not objected to, were given to the jury, as to the measure of damages if the contract was not performed. The verdict shows that considerable deduction from the contract price was made by the jury, and must have been rendered upon the second count for the value of the work done, less the damages allowed for the partial nonperformance of the contract relating to the new channel.

The plaintiff’s evidence tended to show that the channel was completed, and the water turned in, two or three months before the road was finished, and that no objection was made to it, after its completion, until several days after the whole work, including the new road, was finished and accepted by the county commissioners, and the workmen were taken off. Certain instructions were given at the trial as to the acceptance and waiver of performance by the defendant. But it is evident that the question of waiver and acceptance applied to the whole matter in dispute, and not to a specific portion of the work, and that the jury must have found, under instructions claimed to be too favorable to the plaintiff, that there was no acceptance or waiver by the defendants. It is unnecessary therefore to pass upon their correctness. The exceptions do not show affirmatively that the instructions, if erroneous, were in any way injurious to the defendants. Davis v. Elliott, 15 Gray, 90. Fuller v. Ruby 10 Gray, 285.

The instructions to the jury, as to the mode in which the contract required the new channel to be made, were nearly in the words of the contract itself, and were sufficiently intelligible. The interpretation asked for by the defendants would have been erroneous, by only requiring the channel, at the upper end, to correspond in depth to the bed of the river at that point, instead of making the old bed of the river for its whole distance the measure of the depth of all parts of the new channel constructed upon a gradual inclination to the mill pond below.

The admission that the road was properly constructed makes it unnecessary to decide whether the acceptance of the county commissioners could be proved only by the record of their official acts. The defendants cannot be permitted to escape a just claim to compensation, for informality in the acceptance, if there be any, not chargeable to the plaintiff. Bliss v. Deerfield, 13 Pick. 102. Exceptions overruled.