Vill. of Chester v. Leonard

• Decision Date: 14 January 1897
• Citation: 68 Conn. 495,37 A. 397
• Parties: VILLAGE OF CHESTER v. LEONARD et al.
• Court: Connecticut Supreme Court

37 A. 397

68 Conn. 495

VILLAGE OF CHESTER

v. LEONARD et al.

Supreme Court of Errors of Connecticut.

Jan. 14, 1897.

Appeal from superior court, Fairfield county; George W. Wheeler, Judge.

Action by village of Chester, in the state of New York, against Francis Leonard and another, on a bond given the village for the faithful performance of a contract by Leonard for the construction of waterworks. From a judgment for defendants, plaintiff appeals. Affirmed.

Joseph A. Gray, for appellant.

J. Belden Hurlbutt and H. Whltmore Gregory, for appellees.

BALDWIN, J. The complaint was adjudged insufficient on demurrer, for want of certain amendments, whereupon the plaintiff voluntarily amended it by inserting them. There is authority for the position that this waived any exceptions that could otherwise have been taken to the ruling on the demurrer, and that if the plaintiff, in any such case, is unwilling to assume the burden of proving what the amendment would introduce into the complaint, he should stand by his original pleading, and seek a remedy by appealing from the final judgment which would then be rendered on the issues of law. U. S. v. Boyd, 5 How. 29, 51; Birnbaum v. Crowninshield, 137 Mass. 177; 1 Enc. Pl. & Prac. p. 624; 6 Enc. Pl. & Prac. p. 359; Brown v. Railroad Co., 18 N. Y. 495. It is, however, unnecessary to express an opinion upon this point in the present case, as the defense which was made out upon the trial would have been equally a bar to the plaintiff's recovery under the original allegations in the complaint. Had the demurrer been overruled, as the plaintiff now claims that it should have been, the defendants would have had the right to plead over. Gen. St. § 1014. We think it fair to assume that they would have availed themselves of this privilege, instead of allowing final judgment to go against them on the pleadings as they stood, and are therefore of opinion that, even if there were error in the ruling complained of, the plaintiff was not injuriously affected by it, since, if it had not changed its pleading, the defendants would have changed theirs, and the same result must in either event have been ultimately reached.

The parties to the construction contract of October 17, 1892, were the village of Chester and Francis Leonard. In behalf of the village, it was executed by certain individuals who had no authority to speak for it. They were, however, de facto public officers. There was a law under which they assumed to act, and the only defect in their authority arose from their omission to file the necessary bonds and take the prescribed oath of office. This defect was remedied during the ensuing month, and they thereby became the de jure board of water commissioners of the village. The answer set up their want of authority to execute the contract, and td this it was replied that the village had "authorized, accepted, and approved" their action in its behalf. One for whom another has assumed to act may accept and approve what has been done in his behalf, though he never authorized it. The averments in the reply as to acceptance and approval, not having been denied, were admitted to be true. Practice Book, p. 16, § 4. They stated a ratification, which was equivalent to a prior authority. It may be true that under the laws of New York the plaintiff could not on October 17, 1802, have authorized the execution of the contract in its behalf by a mere de facto board of water commissioners. But on and after November 28, 1892, it could have authorized the execution of such a contract by what was then a de jure board of water commissioners; and such authority would properly proceed from that board itself, which for that purpose was, in effect, the village. The ratification pleaded would therefore be sufficient, if it was an acceptance and approval by the board of water commissioners, when duly organized, of what they had assumed to do before they were duly organized. That such was the legal effect of their course of action, as set out in the finding of the superior court, is manifest.

The bond in suit, which bears even date with the construction contract, is one of the exhibits described in the complaint, and was made a part of it by express reference. It runs in favor of the village, and recites that Francis Leonard had entered into this contract with it through its board of water commissioners. This estopped the defendants from denying the authority of the board to represent the village, both as to the contract, and as to what was done in execution of it. Insurance Co. v. Colton, 26 Conn. 42, 50.

The estoppel was sufficiently pleaded. The bond was, in effect, set out in the complaint; and it appeared upon its face that its legal operation was necessarily such as to preclude the obligors from contesting either the proper execution of the contract, or the right of the board to accept the security which they offered to give the village for its due fulfillment. The fact that the board never formally voted to accept the bond is immaterial. They took it into their possession to "hold subject to further action." That was a sufficient delivery, and this suit supplies the want of further action. The sureties on the bond were not entitled to express notice of the acceptance of their obligation; for it was absolute in terms, executed contemporaneously with the construction contract, and part of the same transaction. White v. Reed, 15 Conn. 457, 463.

This contract provided for monthly payments during the progress of the work of 85 per cent of the amount due for the preceding month, as that might be estimated approximately by the village engineer; the balance to be retained as security for the faithful performance of the contractor's obligations until the time of the final estimate and settlement. Nor was it then to be paid over until the work had been publicly tested, and accepted in writing, nor unless, within 20 days from such acceptance, Leonard gave a bond with sureties to keep the works in repair, at his own cost, for one year. Payments largely in excess of 85 per cent. of the contract prices for work done were, however, made both before and after April 19, 1893, and in most cases without any estimate of the engineer. On April 19, 1893, Francis Leonard, after stating to the board of water commissioners that he must abandon the contract, made, by agreement with the board, its treasurer his agent to receive any moneys thereafter to become due under the contract, and therefrom to pay his employes and those from whom materials were purchased. After this substantially all moneys due under the contract were paid out by the treasurer of the board in the manner thus provided. The final payment due to the contractor was made without requiring any bond for keeping the works in repair, the giving of any such security being waived by the village. Material changes were also made, by order of the engineer, from time to time, in the details of the plan on which the construction contract was based. A line of pipes to be laid in a highway for a distance of over 2,500 feet was transferred to private property. Another line...