Dube v. Peck

• Decision Date: 27 February 1901
• Parties: DUBE v. PECK, Town Treasurer.
• Court: Rhode Island Supreme Court

48 A. 477

22 R.I. 443

22 R.I. 467

DUBE

v. PECK, Town Treasurer.

Supreme Court of Rhode Island.

Feb. 27, 1901.

Action for damages by Israel Dube against George H. Peck, town treasurer of the town of Bristol. There was a verdict for plaintiff, and defendant petitions for a new trial. Remanded, with direction to enter judgment for defendant.

Henry W. Hayes, for plaintiff.

Orrin L, Bosworth. for defendant.

BLODGETT, J. It is not disputed that on the 10th day of August, A. D. 1895, the plaintiff executed the following contract with the town of Bristol:

"This agreement, made and concluded this tenth day of August, A. D. one thousand eight hundred and ninety-five, by and between the town of Bristol, R. I., by Ezra Dixon, Sanford B. Munro, James Tobin, Edward B. Pearse, A. P. Nerone, Eben Hill, and James C. Church, a building committee legally appointed by the qualified electors of the town of Bristol, state of R. I., party of the first part, and Israel Dube, of the town of Bristol, state of R. I., party of the second part witnesseth: That the said party of the second part, in consideration of the promises and agreements herein mutually entered into, does for himself, and for his executors, administrators, or assigns, hereby promise and agree to and with the said party of the first part, that he, the said party of the second part, shall and will, in a good and workmanlike manner, and to the satisfaction and acceptance of Messrs. Wm. R. Walker & Son, architects, said satisfaction and acceptance to be expressed in writing, at his own proper cost and expense furnish all the material and perform all the labor which may be required in the erection and completion of a new eight-room brick school house on the north side of the common in the town of Bristol, R. I., in accordance with the plans, elevations, sections, and detail plans prepared and furnished by said architects, together with all work called for in the masons' and carpenters' specifications therefor, which are of even date herewith, and form a part of this contract, for the full sum of eighteen thousand three hundred 00/100 ($18,300 00/100) dollars, which will be received and be payable as follows: Eighty per cent. of the full amount of materials furnished and labor performed to be paid from time to time as the work progresses, and upon the presentation of the writing aforesaid, expressing satisfaction with the said materials furnished and labor performed; said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace any and all work that may afterwards be found to have been done in an improper and unworkmanlike manner, or not in accordance with the drawings and specifications, cither in execution or materials. The balance thereof to be paid upon the completion and delivery of said school house to the said party of the first part, and upon the presentation of a certificate from the architects that the said materials are furnished and labor performed to their satisfaction. That said party of the second part, his executors, administrators, or assigns, shall and will hold said party of the first part harmless, saved, and indemnified from and against all loss, cost damage, payment, and expense on account of all mechanics' or other liens, and also on account of any and all other lawful claims and demands for materials furnished or labor performed on said school house, and also all materials furnished and labor performed under this contract on the part of the said party of the second part, shall be fully completed and performed on or before the first day of April, A. D. one thousand eight hundred and ninety-six. And said party of the first part, said party of the second part well and faithfully performing said contract in all its parts, and satisfying said party of the first part that no liens or other claims for labor done or materials furnished in the aforesaid work exist, will pay therefor the said sum of eighteen thousand three hundred 00/100 ($18,300 00/100) dollars, to be in full for all claims and demands therefor, and which sum shall be paid in the manner as aforesaid. And it is hereby mutually understood and agreed that no payment for extra work shall or will be claimed or made unless ordered in writing by said party of the first part; and that the within-named party of the second part shall, if required, furnish the within-named architects, at the time of their giving said party of the second part any order for payment on account of this contract, with a release from all subcontractors and material men of their rights of lien under chapter 177 of the Public Statutes and all amendments thereto for materials furnished or labor performed for the said party of the second part on the said and within-named building. Further, that the within-named party of the second part shall furnish and maintain on the building a foreman for both brick and carpenter's work, each of which shall be amply qualified to superintend their respective parts of the work, and such foremen shall at all times be such parties as the architects select and approve, during the continuance of the entire work, and until the same is completed. In witness whereof the parties hereto have signed and executed these presents, at Bristol, R. I., this tenth day of August, A. D. one thousand eight hundred and ninety-five.

"SigDed in presence of

"Committee:

Town of Bristol,

Ezra Dixon,

Sanford B. Munro,

James Tobin,

Edward B. Pearse,

Augustine P. Nerone,

Eben Hill,

James C. Church.

"W. Howard walker, to I. D. Israel Dube."

That on August 13, 1895, the building committee located the site of the school house at about the middle of the north end of the common, and the plaintiff on the same day began work there, erecting some sheds for his material, and staking out the cellar for the school house. That on the same day he was notified to cease his work by the town sergeant, acting under the orders of the town council, and that in pursuance of such notice he at once ceased operations. That the site of the school house was finally located by the school committee of the town on the northwest corner of the common, and that on September 19, 1895, this location was ready for the plaintiff to work upon, and that he at once began work thereon, and finished the building on September 16, 1896. This building was duly accepted by the proper authorities, and the money due under this contract,—18,300,—together with some allow ances for extra work, was duly paid to the plaintiff, the following receipt being given by him at the time of the last payment, viz.: "Bristol, R. I., November 19th, 1896. Received of town treasurer, Bristol, R. I., eleven hundred sixty-two and 71/100 (51,162.71) dollars, in full for the amount of this order, and in full for all claims on account of contract and extra work on the Wadley school house at Bristol, R. I. [Signed] Israel Dube, Contractor." On November 1, 1898, the plaintiff brought his action against the town in the common pleas division of the supreme court for the county of Bristol, and recovered a verdict against the town for the sum of $4,125, upon a declaration of which the only count requiring consideration is as follows: "For that the said Israel Dube at, to wit, said Bristol, on, to wit, the 10th day of August,...