Kelley v. Town of Torrington

• Decision Date: 16 February 1909
• Citation: 71 A. 939,81 Conn. 615
• Court: Connecticut Supreme Court
• Parties: KELLEY v. TOWN OF TORRINGTON.

71 A. 939

81 Conn. 615

KELLEY

v. TOWN OF TORRINGTON.

Supreme Court of Errors of Connecticut.

Feb. 16, 1909.

Appeal from Court of Common Pleas, Litchfield County; Albert McC. Mathewson, Judge.

Scire facias by Edward J. Kelley against the Town of Torrington, as garnishee for the amount of a judgment obtained by plaintiff against the original defendants, William Mella & Co. From a judgment for defendant, plaintiff appeals. No error.

See, also, 80 Conn. 378, 68 Atl. 855.

Leonard J. Nickerson and Homer R. Scoville, for appellant.

Walter Holcomb, for appellee.

THAYER, J. The plaintiff brought his action against William Mella & Co., and recovered judgment against them. Claiming to have secured by process of foreign attachment inserted in his writ a debt due to that firm from the town of Torrington, he now seeks on scire facias to obtain a judgment against the town for the amount of his judgment against the original defendant.

The question at issue between the parties upon the trial was whether, at the time suit was brought against Mella & Co., July 19, 1906, any debt was due to that firm from the town. In the trial court a verdict was directed for the defendant The plaintiff claims that this was error, and that he is entitled to a new trial because of the error. To entitle him to a new trial the record must disclose that there was evidence from which the jury would have been warranted in finding proven every fact essential to the plaintiff's recovery, and also disclose no proved and undisputed fact which would prevent his recovery. He claimed to have proved that at the time the town was factorized it was indebted to Mella & Co. for work performed in grading and improving one of its highways known as the "Daytonville Road." At a former trial of the case he claimed that this work was done at the request and by direction of the defendant's selectmen, no price being fixed for the same, and that the town was bound to pay therefor what the work was reasonably worth. Kelley v. Town of Torrington, 80 Conn. 378, 68 Atl. 855. Upon the present trial he claimed that the work was done under a written contract made with the town pursuant to Good Roads Act (Pub. Acts 1905, p. 432, c. 232); that the work was entered upon on May 21, 1906, and continued until July 6th following, when the firm's workmen struck, and the work was abandoned; that Mella & Co. were obliged to abandon the work because they were unable to procure any money from the town with which to pay their men, and because they were required to change, straighten, and lower the grade of the roadbed and safeguard the tracks of a street railway, which was located upon the highway which was being improved. His claim is that these requirements and the town's refusal to pay were wrongful, and prevented the firm from completing the contract, and justified their abandonment of it and treating it as rescinded, that they were therefore entitled to compensation for the work actually performed, and that, if not, they were entitled to compensation for the extra work claimed to have been done in safeguarding, straightening, and lowering the grade of the railway tracks.

If the plaintiff failed to perform his contract, he could not recover under it, but if there was a contract which the defendant wrongfully prevented him from completing he could recover for the work done. Connelly v. Devoe, 37 Conn. 570, 576, Valente v. Weinberg, 80 Conn. 134, 135, 67 Atl. 369, 13 L. R. A. (N. S.) 448. The defendant claims that no such contract was proved. The statute (Pub. Acts 1905, p. 432, c. 232) requires that the improvement of highways therein provided for, except in cases where the cost will not exceed $1,000, shall be submitted to competition; that it shall be let to the lowest bidder; that the work shall be done under a written agreement by the contractor to do it in accordance with plans and specifications prepared under the direction of the state highway commissioner; that such agreement shall be signed by the contractor, the selectmen of the town, and said highway commissioner, and a copy thereof filed with the latter; and that the contractor shall give a bond conditioned for the faithful performance of the work in accordance with the plans and specifications and the terms of the contractu These requirements are for the protection of the state, which pays the larger part of the cost of the improvements. Griswold v. Guilford, 75 Conn. 192, 195, 52 Atl. 742; Kelley v. Torrington, 80 Conn. 378, 382, 68 Atl. 855. It is important to the state that these requirements of the statute be strictly complied with. These improvements are being made in all parts of the state. The contracts on file with the highway commissioner are evidence at hand as to the cost of the work and the terms upon which it is to be performed. They prevent any arrangement between the contractors and the officers of the town detrimental to the interests of the state. And the bond, in case the contractor fails to complete his contract, secures the state from loss such as was incurred in the present case if the contractor fails to perform his contract. While the towns nominally make the improvements, their powers, and the powers of their officers, are prescribed and limited by the statute. Their selectmen have no power to expend for other purposes the money appropriated by...