Douglass & Varnum v. Village of Morrisville
Decision Date | 26 October 1915 |
Citation | 95 A. 810,89 Vt. 393 |
Parties | DOUGLASS & VARNUM v. VILLAGE OF MORRISVILLE |
Court | Vermont Supreme Court |
November Term, 1913.
ASSUMPSIT for labor done and materials furnished in the construction of a concrete dam with its appurtenant steel penstock. Plea, the general issue with notice. Trial by jury at the June Term, 1911, Lamoille County, Miles, J presiding. Verdict and judgment for the plaintiffs. Defendant excepted. The opinion fully states the case. The diagrams referred to in the opinion are shown on the following page.
Judgment affirmed. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
J. W. Redmond and F. G. Fleetwood for the defendant.
Present: MUNSON, WATSON, HASELTON, AND TAYLOR, JJ., AND WATERMAN, SUPERIOR J.
WATSON
The case was tried on the second, third, and fourth counts of the amended declaration, being two special counts and the general count in assumpsit. These counts were held sufficient (on demurrer) when the case was here before. 84 Vt. 302, 79 A. 391. Plea, general issue, and notice (1) of payment, and (2) that the excavation and filling of the fissure mentioned in the declaration, and all the work, and material therein contained and made, were in fulfillment of the written contract between the plaintiffs and the defendant, dated July 2, 1906, and the plans and specifications therein referred to; that the plaintiffs have failed to fulfill said written contract, and recoupment. A trial by jury was had, resulting in a verdict for the plaintiffs; judgment was rendered on verdict; and the case is here on defendant's exceptions.
For the purpose of showing the evidence, the tendency thereof, the objections and motions made during the trial, the grounds upon which the same were based, the rulings thereon and the exceptions taken thereto, a duly certified transcript of the whole case is referred to and made a part of the exceptions and is to control. The exhibits and the charge of the court are also referred to, made a part of the exceptions, and are to control.
It appeared that on July 2, 1906, the village of Morrisville, by its water and light commissioners, entered into a written contract with the plaintiffs, Douglass & Varnum, containing provisions material to be noticed, as follows:
Of the provisions contained in the specifications, particular notice need be had only to the following:
The water and light commissioners mentioned in the contract (including the specifications) are hereinafter designated as commissioners, and generally the village of Morrisville, as the village.
The written contract was introduced in evidence and marked plaintiffs' Exhibit A, and the same is hereinafter referred to as exhibit A. Blue print copies of the plans and drawings prepared by H. M. McIntosh and referred to in the contract and made a part thereof, were introduced in evidence and marked plaintiffs' exhibit B, and the same is hereinafter referred to as exhibit B. This exhibit comprises four pages, or sheets, of plans and drawings bound together, and are the plans and drawings received by the contractors.
It appeared that said McIntosh was defendant's consulting engineer during all the time material here, and is the "engineer" referred to in exhibit A; that he secured the data for and made exhibit B; that Calvin A Slayton was the "inspector" referred to in exhibit A, as "the inspector in charge of the work, appointed by the water and light commissioners of Morrisville,"--It further appeared that Slayton held no office under the village, and had no authority from it or from the commissioners, except what was conferred upon him by the provisions of exhibit...
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