Callan v. Peck

• Decision Date: 10 July 1914
• Docket Number: No. 4732.,4732.
• Citation: 91 A. 34,37 R.I. 227
• Parties: CALLAN v. PECK, Town Treasurer.
• Court: Rhode Island Supreme Court

91 A. 34

37 R.I. 227

CALLAN

v. PECK, Town Treasurer.

No. 4732.

Supreme Court of Rhode Island.

July 10, 1914.

Exceptions from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Action by Luke H. Callan against George H. Peck, as Town Treasurer of the town of Bristol. Nonsuit granted, and case transferred from the superior court on plaintiff's exceptions. Exceptions overruled, and case remitted for entry of Judgment.

A. B. Crafts and William H. McSoley, both of Providence, for plaintiff. William T. O'Donnell, of Bristol, and Waterman & Greenlaw, of Providence, for defendant.

JOHNSON, C. J. This is an action of the case in assumpsit brought by Luke H. Callan, of Bristol, against the defendant, as town treasurer of the town of Bristol. The declaration contains a count on book account and certain common counts. No book account was introduced in evidence, but there was introduced in evidence a certain contract made by and between the plaintiff and the town of Bristol, and a notice to the town council relating to the claim that the plaintiff then made. The case was tried before his honor, Mr. Justice Barrows, and a jury on the 3d, 4th, and 5th days of December, 1913, and, the justice presiding having ruled out certain testimony, the plaintiff rested his case, and a nonsuit was thereupon granted. Thereafterwards he took the usual procedure to bring before this court certain exceptions, and he is now before this court upon his bill of exceptions as allowed by the trial justice.

From an examination of the bill of exceptions we think that most of the exceptions can be eliminated for the purposes of this hearing, as they do not affect the question as to whether or not the nonsuit was properly granted.

The first exception, shown on page 126 of the transcript, related to the ruling out of the following question: "Q. Did you recommend any course?" The plaintiff had testified that the purpose of the verbal contract for the putting in of 240 feet of pipe on Woodlawn avenue, to connect with the underdrain on Wood street, was "so as to take the water away from my trench and drain the soil, the land, as the new work was constructed." Asked if that method was recommended by him or by somebody else, he answered: "Not by me." He was then asked the question to the exclusion of which the exception was taken. It seems to us that the question was properly ruled out for the reason stated by the trial judge:

"The Court: It seems to me his evidence should be confined to showing the plans they adopted were not proper, then, Mr. Crafts. That does not involve saying he had some other plans which were better. His testimony must be limited to showing these plans were not proper."

Moreover, the plaintiff later testified that he wanted to wait until he had completed his system before putting in the underdrain, but they decided that it would better be done then.

The plaintiff claims that the answer to this question would have shown that the plaintiff had another method in view as a substitute for the underdrain, viz., the digging of a trench southerly from Woodlawn avenue onto private property by permission and then pumping accumulating water into the brook. He, however, made no such offer of proof, and hence this will not avail him.

In O'Malley v. Commonwealth, 182 Mass. 196, 65 N. E. 30, the court held that:

"In order to sustain an exception to the exclusion of a question to a witness, it must appear what the excepting party expected to prove by the answer, and that he was harmed by the exclusion."

See, also, Farnum v. Pitcher, 151 Mass. 470, at page 475, 24 N. E. 590; Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488; Gage v. Trawick, 94 Mo. App. 307, 68 S. W. 88; Loker v. S. Mo. Elec. Ry. Co., 94 Mo. App. 481, 68 S. W. 373; Greever v. Bank, 99 Va. 547, 39 S. E. 159.

As to the second exception, if the nonsuit was properly granted, the question that was ruled out, to which the exception was taken, would be immaterial. The question refers to the extra time taken doing the work, and could only be material on the question of damages.

The offer of proof which is the subject-matter of the third exception relates to the same matter as the question which is the subject-matter of the second exception.

The fourth exception relates to conversations with the commissioners, or members of the commission, or the assistant engineers representing Mr. Gray. If the nonsuit was properly granted, this would have no bearing upon the case.

The offer of proof that is the subject-matter of the fifth exception relates to the question of damages and to like conversations as are referred to in the question that is the subject-matter of the fourth exception.

The offer of proof that is the subject-matter of the sixth exception is that the defendant's representatives, the sewer commission and the engineer, were at fault and responsible for turning this water onto them; that they turned the water onto them, and that necessitated a lot of extra work for which they claim compensation, and that they knew that they were doing this work, and that they should claim extra compensation, but that they never agreed to pay compensation. If the nonsuit was proper, this offer of proof was properly rejected.

The seventh exception is the real basis of this proceeding, and that relates to the granting of the defendant's motion for a nonsuit.

The facts of the case are, in brief, as follows: The plaintiff entered into a written contract with the town of Bristol to do certain construction work in connection with building sewers and their appurtenances. Prior to submitting his bid, he was shown a certain plan, showing an existing and proposed sewerage system in the town of Bristol, and upon that plan there appeared to be an underdrain upon Woodlawn avenue which communicated with an underdrain on Wood street. An underdrain is a drain underneath the sewer proper. It is a sort of an open or porous drain. The pipes are left open and porous at the joints, so that water can get in from the surrounding soil. Sometimes they are of tile drain, so that water can get in all the way. It is simply a drain to assist in caring for the water that is in the ground through and along which the underdrain runs.

The sewer and underdrain appurtenant thereto that Mr. Callan was to construct was to have started at Woodlawn avenue about 240 feet from Wood street, and the underdrain was to have been connected with an underdrain that was supposed to be there, running to and connecting with an underdrain on Wood street, and the sewer was to have run in a general northerly direction, with branches leading into different cross streets. When the plaintiff dug down to start the sewer and the underdrain connected therewith, he did not find any underdrain on Woodlawn avenue. The matter was then taken up with the commission, and the commission decided, in order to complete that part of the sewerage system, to have the plaintiff put in an extra 240 feet of underdrain on Woodlawn avenue, which was the only additional amount that was required to connect with Wood street, the price to be paid being the same as the price paid for the rest of the work. The underdrain on Woodlawn avenue was to be connected with the main underdrain on Wood street.

The claim on behalf of the plaintiff, in the beginning, was that he was misled by a material, though innocent, misrepresentation as to the existence of this underdrain on Woodlawn avenue. This claim was later abandoned, and it was admitted that, while there was a misrepresentation as to the existence of an underdrain on Woodlawn avenue, it was not a material one, and had no effect whatsoever upon his work, except to cause the construction of an extra 240 feet, and did not give rise to his present claim. It simply resulted in his having to build an extra section of sewer for which he received compensation.

When the plaintiff opened up the underdrain on Wood street to make a connection with the new underdrain that he had constructed on Woodlawn avenue, a stream of water gushed out. He claims that he was told that the underdrain on Wood street was a working underdrain, and that the fact that this stream of water gushed out and continued to come from that underdrain for a considerable period of time showed that it was clogged up, and hence it was not a working underdrain. It is for the work done in pumping out the water which came from this Wood street underdrain and for incidental damages due to the water coming into the trench that he was digging and had dug on Woodlawn avenue and that he was digging and had dug on the rest of the system included in the original contract that he seeks to recover in this proceeding, claiming that, to entitle him to recover, he is not obliged to have the same allowed by the engineer as extras.

The defendant, on the other hand, claims that, to entitle the plaintiff to recover, he is obliged to have the same allowed by the engineer as extras, and this is the real specific question raised in this case, and a subordinate question is as to whether, if this is not included in the term "extras," as provided in the contract, and the plaintiff merely claims, as he does, that he was damaged by the town dumping a lot of water upon him, he can recover against the town in an action of assumpsit, or whether he must seek to recover against the town for a tort.

The plaintiff, in order to maintain his contention that the pumping referred to in his bill was not included in the contract, and was not to be considered under the head of extras in the contract, maintains that the underdrain on Woodlawn avenue had nothing whatsoever to do with the contract, and hence that the pumping was not required in connection with anything that he was doing under the contract.

One of the main items of damages for which the plaintiff seeks to recover on account of this water coming in upon him is for delay to the work that he was required to do...