Kelley v. Town of Torrington

• Decision Date: 03 March 1908
• Citation: 80 Conn. 378,68 A. 855
• Court: Connecticut Supreme Court
• Parties: KELLEY v. TOWN OF TORRINGTON.

68 A. 855

80 Conn. 378

KELLEY

v. TOWN OF TORRINGTON.

Supreme Court of Errors of Connecticut.

March 3, 1908.

Appeal from Court of Common Pleas, Litchfield County; Richard H. Tyner, Judge.

Scire facias by Edward J. Kelley to fix the liability of the town of Torrington as garnishee for the amount of a judgment obtained by plaintiff against the original defendants, William Mella & Co. There was a verdict and judgment for plaintiff, and the town of Torrington appeals. Reversed, and new trial granted.

Upon the trial below it was admitted that the original defendants, William Mella & Co., had performed work in the improvement and change of a highway in the defendant town known as the "Daytonville Road," that they had ceased work thereon prior to the service of the garnishee process, and that the town had paid nothing for the work. The plaintiff claimed to have proved that the work was done at the request and by direction of the selectmen of the town, that no price was fixed to be paid therefor, and that said firm was entitled to be paid what the work was reasonably worth. The defendant offered evidence tending to prove the following facts: The town had voted to expend $9,000 under the provisions of the good roads act (chapter 232, p. 432, Pub. Acts 1905), and had recommended that the road in question be selected by the selectmen and highway commissioner for such improvement. The selectmen, with the approval of the highway commissioner, selected said road for improvement, and procured from the commissioner plans and specifications for such improvement, and afterwards advertised for bids for the work, all in compliance with the provisions of the act. The said William Mella & Co. was a bidder for the work, and their bid was the lowest of the several bids received therefor, and was accepted by the selectmen and highway commissioner, and the contract was awarded to them. A contract, with the specifications attached, prepared by the highway commissioner, was then handed to one of the members of the firm for signature by the firm, and he was informed that he must give a bond as required by the act, and that it must be a security company bond as required by the published advertisement for bids. Thereafter, without notice to or knowledge on the part of the selectmen and without furnishing such bond, said Mella & Co. entered upon the highway and began the work. The selectmen after learning that the work was in progress, notified the firm that no payments would be made until the bond was furnished. After a small portion of the work called for by the contract had been performed, it was abandoned by the firm. Thereupon the selectmen advertised for new bids, and the work was done by other contractors at an expense exceeding the amount of Mella & Co.'s bid. The defendant claimed that, under the good roads act, the selectmen could not let out the work by oral contract without competition as the plaintiff claimed was done, and also claimed that the work was done under an express contract entire in its nature, and that, as it was abandoned before completion, the contractors had no claim upon the town at the time the latter was factorized. It filed requests to charge upon these and other aspects of the case. The reasons of appeal assign as error the court's refusal to charge as requested, its charge as given, and certain rulings upon the admission of evidence which sufficiently appear in the opinion.

Walter Holcomb, for appellant. L. J. Nickerson and H. R. Scoville, for appellee.

THAYER, J. (after stating the facts as above). The defendant claimed that the selectmen in carrying out the vote of the town for improving the Daytonville road under the good roads act had no authority to let out the work of the improvement without competition. The court, after reading to the jury from the case of Griswold v. Guilford, 75 Conn. 192, 52 Atl. 742, instructed them as follows: "I charge you, therefore, that, under the good roads law and the construction which our Supreme Court has put upon it in the case which I have just read to you, the selectmen of the town of Torrington had authority to make an oral or written contract for the work contemplated on the Daytonville road. They also had authority to employ men and teams to work on said road, agreeing to pay them a reasonable price for work done or materials furnished, provided the total amount of the same did not exceed the amount of money appropriated by said town for the doing of said work. Aside from that, however,...