Jones v. Town of Marlborough

• Decision Date: 01 June 1898
• Citation: 70 Conn. 583,40 A. 460
• Court: Connecticut Supreme Court
• Parties: JONES v. TOWN OF MARLBOROUGH.

40 A. 460

70 Conn. 583

JONES

v. TOWN OF MARLBOROUGH.

Supreme Court of Errors of Connecticut.

June 1, 1898.

Appeal from court of common pleas, Hartford county; Epaphroditus Peck, Judge.

Assumpsit by Charles C. Jones against the town of Marlborough to recover for work and labor in repairing certain highways of the defendant town, brought originally before a justice of the peace, and thence by the defendant's appeal to the court of common pleas, and tried to the court. Facts found and judgment rendered for the plaintiff for $15, and appeal by the defendant for alleged errors in the rulings of the court. Error, and judgment reversed.

The first count was for $22.50, due in 1897, on a contract made October 14, 1893, to maintain and repair certain sections of the defendant's highways for five years, for $45 a year. A special defense was pleaded, that the work done during the first half of 1897 had not been approved by the inspector provided for in the contract. On this count the defendant had judgment. The second count was for the reasonable value of services, rendered at the defendant's request, in maintaining and repairing said sections of its highways, between May 10 and September 1, 1897. To this a general denial was pleaded. The finding stated the following facts: On October 14, 1893, at its annual town meeting, the defendant voted, under Gen. St. § 2665, to let out the repairs and maintenance of certain sections of its highways for five years to the lowest bidder, at public sale, the work to be done according to certain written specifications, and the contractors to execute a bond for the faithful discharge of their contracts. The roads were to be inspected by the highway inspector, on May 10th and September 10th, annually, and he was immediately to notify each contractor whose work was not accepted. The contractors were to make their report of the inspections to the selectmen on or before May 20th and September 20th in each year, "or forfeit their pay for their services." The plaintiff was the lowest bidder for the sections mentioned in his complaint, and was awarded the contract, pursuant to the vote. He gave a bond, on the same day, conditioned that "whereas, he had contracted with the town to repair and maintain said sections for five years from October 14, 1893, for $45 yearly, in accordance with said specifications, and to the acceptance of the highway inspector appointed by said town, and known by said name, and no payment to be made for the same until accepted by said inspector: Now, therefore, if the said Jones shall well and truly cause said sections of highway to be repaired and maintained in accordance with said specifications, and to the acceptance of said inspector, then this bond or obligation shall be void; otherwise to be and remain in full force and virtue." For many years a practical construction had been given to the requirements of the contracts for road repair by the inspectors, selectmen, contractors, and all others concerned in their performance, by which the contractors were not required to keep the roads at all times up to the specifications, but simply to bring them up to that standard at the times set for inspection, and between such inspection times to repair any wash outs caused by heavy storms. This practical construction continued to be given to the contract during the period in question, and was treated as the construction to be given to it by both parties on the trial. The plaintiff performed his contract to the satisfaction of the defendant, and received his pay therefor semiannually, to and including the payment of October, 1896. He also received the payment of October, 1897, leaving the payment which regularly should have been made in June, 1897, in dispute, and this action was brought to recover that payment. Just prior to the inspection day, May 10, 1897, the plaintiff and other members of his family were sick, and one of his family died. For this reason the road inspector and selectmen agreed to extend the plaintiff's time for getting his roads ready for inspection, and the first selectman notified him thereof on May 15th, and asked him to get his roads ready as soon as he could. The plaintiff had already done one day's work in preparation for the May inspection, with a man and team, in April. On the 17th, 18th, and 19th of May he employed two men, with a team, in work on his sections of road. He then notified one of the selectmen that the roads were ready for inspection. The inspector knew on the 20th that the roads had been prepared for inspection. The inspector did not make any formal inspection of the road for report to the selectmen, though he did drive over the roads in the course of other business, and regarded them as insufficient, which fact he stated to the plaintiff, in conversation, on the 21st. On June 15th the plaintiff applied to the selectmen for his semiannual payment, and they refused it because his roads had not been inspected. The selectmen then notified the inspector in writing to inspect the plaintiff's roads, adding to their notice the words: "And you must consider rains that have been since the inspection." The inspector refused to inspect the roads, because of this instruction, which he considered improper. The plaintiff knew of...