페이지 이미지
PDF
ePub

poration is hereby authorized to make contracts with the United States, and with corporations and inhabitants of said towns of Winterport and Frankfort, or any village corporation or association in said towns, for the purpose of supplying water as contemplated by this act; and said towns of Winterport and Frankfort, or part thereof, are hereby authorized by its selectmen to enter into a contract with said company for a supply of water for any and all purposes mentioned in this act, and for such exemption from public burden as said towns and said company may agree, which, when made, shall be legal and binding upon all parties thereto. Any village corporation in said towns through its assessors, is also authorized to contract with said company for water for all public purposes."

The Winterport Water Company was duly organized, and at the annual town meeting held on the 9th day of March, 1896, under appropriate articles in the warrant, the town voted to exempt from taxation the stock and property of the Winterport Water Company for a term of 20 years; and under article 39 of the warrant the town directed the selectmen to contract with the Winterport Water Company for water for fire purposes in the village for a term of 20 years, and under such vote the selectmen were to determine the number of hydrants to be located and the amount to be paid per year.

The selectmen did not exercise the authority; consequently, no contract was made under the vote of March 9, 1896.

No action having been taken towards the execution of the contract authorized at the meeting held in March, 1896, a special town meeting of the inhabitants of the town was called for April 22, 1896.

The warrant contained, among others, the following articles:

(2) "To see if the town will vote to contract with the Winterport Water Co. for not less than (20) twenty hydrants' service for a term twenty (20) years as per said company's proposal to act anything relating thereto.

(3) "To see if the town will choose a committee and give to such committee full authority to make and execute, for and in behalf of the town, a contract with the Winterport Water Co. for carrying out the provisions of art. 2 of this warrant or act anything relating thereto.

"Winterport, April 13, 1896."

The action of the town on the foregoing warrant appears by the following record:

"On motion of G. H. Dunton, voted to pay the sum of one ($1,000) thousand dollars per year to the Winterport Water Co., for not less than (20) twenty hydrants' service, for not less than 20 years, as per said company's proposal. Adopted. Yeas, 208; nays, 135.

"On motion of F. W. Haley, that a committee of three be raised, and that such committee have full authority to make and execute for and in behalf of the town, and in the name of the town, a contract with the Winterport Water Co., whose proposal has been

accepted and adopted by a vote of the town, and (under) art. 2d of the warrant for this meeting.

"On motion of Hon. Fred Atwood, Mr. Ellery Bowden, Mr. G. H. Dunton, and Mr. H. E. Fernald be the committee for and in behalf of the town, and in the name of the town, to make and execute the contract with the said Winterport Water Co., agreeable to the vote accepting and adopting the proposals of said company as taken under art. 2d of the warrant for this meeting."

Under and by virtue of the authority thus given, the committee appointed by the town entered into a contract with the water company for a supply of water for municipal purposes, as above.

The defendant, in its brief statement, set forth:

"That at said Winterport, on the 9th day of May, 1896, plaintiff and defendant made a contract, which ever since has been and now is in full force and effect, whereby, among other things, defendant agreed to furnish and supply water to plaintiff for fire and municipal purposes, for which and in consideration thereof plaintiff agreed to pay and allow defendant each year a sum equal to any taxes assessed against defendant by plaintiff.

"That under said contract defendant has furnished and supplied water to plaintiff, and thereby defendant has paid to plaintiff the amount of such alleged tax, and was and is entitled to be allowed by said plaintiff the amount of said alleged tax.

"That said alleged tax has been paid by defendant to the plaintiff."

Argued before EMERY, HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

N. & H. B. Cleaves, S. E. Perry, and Ellery Bowden, for plaintiff. Chas. A. Bailey and R. F. & J. R. Dunton, for defendant.

HASKELL, J. An action of covenant broken for not paying $258, a sum equal to the tax assessed against plaintiff in 1897. Plea, non est factum, which puts in issue the validity of the deed containing the covenant sued.

On April 22, 1896, a town meeting was called, "to see if the town will vote to contract with the Winterport Water Company for not less than (20) twenty hydrants' service, for not less than (20) twenty years, as per said company's proposal."

It was "voted to pay the sum of $1,000 per year, for not less than 20 years' hydrant service, for not less than 20 years, as, per said company's proposal."

Thereupon the deed was executed by the parties, covenanting that defendant should pay the $1,000 yearly rental, and such further sum each year as shall equal the amount of tax, if any, assessed against defendant.

The defendant contends that the covenant sued was not authorized by vote of the town. True, the vote is imperfect, and perhaps fatally so, were it not aided by the article in

the warrant under which it was taken. That article is to see if the town would contract for 20 hydrants' service, for 20 years, as per water company's proposal. That proposal was in writing, and read to the town, and upon its reading the vote was passed. The proposal contained various articles, and the town may fairly be said to have adopted its provisions. The vote must have meant that, if anything.

Surely, it could not have meant simply the payment of $1,000 yearly rental without being secured the service carefully specified in the proposal. That was specific, and carefully worded, and has been embodied literally in the deed. All its provisions were proposed, and must have been considered as the pending question upon which the vote was taken. We think, taking the whole proceeding together, that the town meant to, and in words not so comprehensive as may be wished did, adopt the entire proposal. Other acts of the town, were they competent here, might strengthen this view, but, although they are in evidence, we do not think it best or necessary to consider them.

At the same meeting, under an article to see if the town would choose and empower a committee to execute the deed in behalf of the town, such committee was chosen and so executed the deed.

It is contended that the charter of defendant (Sp. Act 1895, c. 25) authorized defendant to contract for water supply by its selectmen only, and not by a committee, as here. Defendant town did not contract by a committee. It contracted itself, and authorized a committee to execute the contract in the name of the town. The subject-matter of the contract was a municipal function, authorized by statute, that it might act upon directly by vote, and cause its chosen agents to execute its action in its name. To be sure, the letter of the statute is "authorized, by its selectmen, to enter into contract with said company for a supply of water." One construction may be that the selectmen might negotiate and conclude such a contract, and execute it in behalf of the town. Under this construction, no other method could be adopted, for the selectmen alone are given the power, and no one else. But the better construction is that the town itself may contract, and that it may execute its contract by the selectmen If it pleases. The method is permissive, not exclusive. Suppose the selectmen be incapacitated by sickness, or a majority of them be absent, or refuse to act, shall the town be prohibited from the exercise of its function by mischance, misfortune, or the perversity of its selectmen? Shall the agent veto the act of his principal? It is more reasonable to say that the town may act through the agency named, if it shall please, or by any agent that it may authorize for the purpose. The town is to act, not the selectmen, unless directed by the town to do so. The town did act, and voted the contract submitted to its meeting. Upon a proper article in its warrant. it chose a committee to execute the con

tract in its name that it had already adopted. This case resembles, in many particulars, George v. School Dist., 6 Metc. (Mass.) 497. There the district voted to build a school house, and chose a committee to make a contract therefor according to a proposal submitted. The meeting adjourned to a future day. Meantime another meeting was called and held, and the town voted to build upon a new plan then proposed, and chose a committee to make the contract, and it was held that the contract so made was valid, and also that it rescinded the former vote. See Nobleboro v. Clark, 68 Me. 87; Haven v. City of Lowell, 5 Metc. (Mass.) 35; Murdough v. Inhabitants of Revere, 165 Mass. 109, 42 N. E, 502; Curtis v. City of Portland, 59 Me. 483.

Where the mode to contract named in a statute is permissive merely, no good reason can be given why other modes may not be employed. If the mode be exclusive, that mode alone should be followed. One test is to see if the act of the agent be ministerial only, for there he has no discretion, and is to merely carry into effect the will of his principal. If, however, he is to exercise judgment, so as to determine any rights of the principal, then his judgment is made an element in the transaction, and it cannot be consummated without it. In the case at bar the town was authorized to contract for water. The contract was to be the town's contract, made. by it. The selectmen had no official voice in the matter. They were permitted to execute the will of the town, if ordered to do so. No reason has been given why another, chosen, should not act also. We think the contract valid.

[blocks in formation]

RAILROAD-FIRE-NEGLIGENCE-EVIDENCE -WITNESS-REFERENCE TO MEMORANDUM.

1. The liability of a railroad company to make compensation for injury to property along its route by fire communicated by a locomotive engine in its use, created by statute (Rev. St. c. 51, § 64), is co-extensive with the right given to the railroad company by the same statute to insure such property.

2. For the company to be liable there must be such elements of permanency in the situation of the property that the railroad company may have a reasonable opportunity to protect itself against its liability by insurance. Upon this principle, a railroad company is not liable for the destruction of property, under the statute, temporarily located along its route, and which may be so soon and so readily moved that the company cannot, by the exercise of reasonable diligence, protect itself against liability by insurance, but the company is liable under the statute for merchandise, lumber, or other chattels regularly and permanently locat ed along its route.

3. Held, that the property of the plaintiff destroyed by fire communicated by a locomotive engine in the defendant's use had such elements of permanency in its situation and other condi

tions as to place it within the protection of the statute.

4. The plaintiff testified that shortly before the fire he had taken an account of the shipknees, the property destroyed; that in the first instance he made his memoranda upon a shingle, and subsequently, upon the conclusion of his account taking, he transferred the result of his account to a small memorandum book. In answering a question as to the number and sizes of these ship-knees destroyed, he was allowed by the court to refer to the small memorandum book for the purpose of refreshing his recollection, against the defendant's objection, as stated, that "this book is not a book of original entry." Held, that the ruling was correct; that for this purpose it was not necessary that the writing should have been an original one.

5. Where objection is made because the witness, after referring to his memoranda, had no independent recollection of the facts that he testified to, held, that this objection is also unavailing. A witness may be allowed to assist his memory by referring to writings, when he recollects having seen the writing before, although he has at the time of testifying no independent recollection of the facts mentioned in it, if he remembers that, at the time he saw the writing before, he knew the contents to be correct. (Official.)

Exceptions from supreme judicial court, Piscataquis county.

Action by Charles W. Pierce against the Bangor & Aroostook Railroad Company, under Rev. St. c. 51, § 64, for destruction of ship-knees by fire from defendant's locomotive. Verdict for plaintiff. Motion for new trial, and exceptions by defendant. and exceptions overruled.

Motion

Argued before EMERY, HASKELL, WISWELL, STROUT, and SAVAGE, JJ.

H. Hudson and M. L. Durgin, for plaintiff. F. H. Appleton and H. R. Chaplin, for defendant.

WISWELL, J. This is an action to recover damages for the destruction of a quantity of ship-knees belonging to the plaintiff, and situated along the route of the defendant's railroad, by fire communicated by a locomotive engine in the defendant's use. The plaintiff's writ contains two counts,-one, alleging that the destruction of the plaintiff's property by fire was caused by the defendant's negligence; the other, based upon the statute (Rev. St. c. 51, § 64).

At the trial there was no controversy as to the nature, location, or description, except as to quantity, of the plaintiff's property, and the testimony on behalf of the plaintiff, as to the time during which, and the manner in which, he had been storing these ship-knees, in the place where they were when destroyed by fire, was undisputed. Consequently the justice presiding instructed the jury, in effect, that the defendant was liable under the statute, and that they need not consider the allegations of the defendant's negligence. To this instruction the defendant excepted, the only question presented thereby being as to whether the nature, situation, and condition of the plaintiff's property, and the length of time during which the place where the loss occurred had been used by the plaintiff for 47 A.-10

this purpose, were such as to bring this property within the meaning and protection of the statute upon which this count in the writ was based.

From the uncontradicted testimony upon the part of the plaintiff, these facts appear: The property destroyed by fire was along the route of the defendant's railroad; in fact, it was within and about a storehouse or shed on the company's land, placed there with the consent of the defendant's predecessor in the ownership of the road, and maintained, since 1892, with the implied consent of the defendant. It was built by the plaintiff in the year 1881 or 1882, for the purpose of storing shipknees therein. The shed was an inexpensive one, costing originally, as testified by the plaintiff, about $125; but it was a frame building, placed upon cedar posts set in the ground, its roof was boarded and shingled, and its sides boarded, although the lower boards were removed from time to time as the plaintiff had occasion to do so for the purpose of putting in or taking out these knees. The building was 92 feet long, 19 feet wide, and 16 feet posted on the one side, and 11 to 12 feet on the other.

From the time that this shed was first built, in 1882, 10 years before the defendant commenced the operation of the railroad, up to the time of its destruction by fire, May 21, 1896, it had been continuously used by the plaintiff for the storage of knees, which he was engaged in the business of buying, getting out himself, and selling; and during all of that time, according to the undisputed testimony in behalf of the plaintiff, he had also occupied the land in the immediate vicinity of the shed for the purpose of piling there these knees. A portion of the knees was each year brought there upon the defendant's railroad, unloaded from a siding near the shed, hauled some distance by the plaintiff to his mill to be finished or dressed, and then hauled back to the storehouse, where and about which they were stored until sold, when they were generally shipped over the defendant's railroad. The plaintiff testified that this business had amounted during these years to something about $7,000 each year.

Under these circumstances, we think that the plaintiff's property, that outside of the shed as well as inside, came within the protection of the statute, and that the ruling that the defendant was liable for its destruction by fire admitted to have been communicated by one of its engines was correct.

When this statute was first considered by the court in Chapman v. Railroad Co., 37 Me. 92, the court construed it as giving to the railroad company a right to insure property along its route coextensive with the company's liability for its destruction. "To make this right to insure property of any practical value to the corporation, the property must be of such a character and so situated as to render insurance practicable by the use of reasonable diligence." And it was then decided that a railroad company is not liable

under this statute for property which is so temporarily located along its route that the company does not have a reasonable opportunity to insure it.

This general principle has been followed by the court in all of the cases that have come before it. For instance, in Chapman v. Railroad Co., supra, the court held that the property destroyed by fire had no established location, that it was deposited and removed with such facility as to render insurance impracticable and unavailable, and that consequently it was not within the meaning of the statute. In Lowney v. Railroad Co., 78 Me. 479, 7 Atl. 381, the decision of the court that the company was not liable was based upon the fact that the property destroyed consisted of movable articles, temporarily placed near the railroad track, as in the case of Chapman v. Railroad Co.

But in Stearns v. Railroad Co., 46 Me. 95, to recover damages for the destruction of a chair factory, the machinery and tools therein, and chairs wholly or partially manufactured, together with stock used in their manufacture; in Bean v. Railroad Co., 63 Me. 294, to recover for the destruction of a stock of goods in a store occupied by the plaintiff near the railroad track; and in Thatcher v. Railroad Co., 85 Me. 502, 27 Atl. 519, to recover for the destruction of a quantity of lumber stored upon a piling ground near the defendant's track, which had been used by the plaintiff for the same purpose for a number of years in connection with his mill, with the knowledge of the defendant company, which had built side tracks to facilitate the shipping of lumber from the piling place,this court held that in each of these cases the railroad company was liable.

The distinction between these two classes of cases is well marked. They are all decided upon the construction of the statute laid down by the court in the first case in which it was considered; that is, that the liability of the company should be co-extensive only with its practical opportunity to insure the property along its route for which it might be liable. For the company to be liable there must be such elements of permanency in the situation of the property that the railroad company may protect itself against its liability by insurance. Upon this principle a railroad company is not liable for the destruction of property, under the statute, temporarily located along its route, and which may be so soon and so easily moved that the company cannot, by the exercise of reasonable diligence, protect itself against liability by insurance; but the company is liable under the statute for merchandise, lumber, or other chattels regularly and permanently located along its route.

It is, of course, unnecessary in any of these cases that the identical articles should remain situated along the route for any particular length of time. These may be constantly changing, as do the various articles in a stock of goods, while the stock itself,

replenished from time to time, remains permanently in the place designed for it. The permanency here referred to means the permanent use of the particular place for the same kind of articles or goods. We think that the character of this property belonging to the plaintiff, and the long-continued use that he had made of this storehouse, and its immediate vicinity, for the purpose of storing there his ship-knees, continuously since 1882, clearly bring the case within the meaning of the statute.

For the purpose of proving the number and sizes of the knees destroyed, the plaintiff testified that on the 12th and 13th days of May, a few days before the fire, he took an account of the same, in the first instance making his memoranda upon a shingle, the result of which he later, on the afternoon of the 13th, transferred to a small memorandum book. In answering a question as to the number and sizes of the knees that he had taken an account of, he referred to this memorandum book, when the counsel for the defense objected to such reference, giving as a reason that "this book is not a book of original entry." The court overruled the objection, and allowed the witness to refer to this book for the purpose of refreshing his recollection. The absence of the shingle upon which the original memoranda were made was unaccounted for. To this ruling the defendant excepted.

Objection is now made because the witness after referring to his memoranda had no independent recollection of the fact that he tesfied to. But this did not appear to be the case at the time, and objection was not made at the time for this reason. The justice presiding only ruled that the witness might refer to his book containing memoranda, made at the close of his stock taking, to refresh his recollection, and the objection was that he should not be allowed to look at the book even for that purpose, because it was not the book of original entry. For this purpose it was not necessary that the writing should have been an original one.

But, even if the objection now urged had been made at the time, we think that it would have been unavailing. A witness may be allowed to assist his memory by referring to writings, "where the witness recollects having seen the writing before, and, though he has now no independent recollection of the facts mentioned in it, yet he remembers that, at the time he saw it, he knew the contents to be correct." 1 Greenl. Ev. § 437.

When the testimony relates to dates, figures, amounts, or quantities, which can be retained in the memory with difficulty, if at all, this rule is, we believe, a necessary and wise one, and is productive of more good than harm. The rule as above stated is quoted in full and with approval in Dugan v. Mahoney, 11 Allen, 572.

The only question raised by the defendant's motion for a new trial is as to the amount of damages assessed by the jury, as

this was the only question submitted to the jury. But this ground for a new trial is not urged by the defendant's counsel in argument, and we think that the amount of the damages assessed was authorized by the evidence.

Motion and exceptions overruled.

(94 Me. 208)

HARRINGTON v. BEAN.

(Supreme Judicial Court of Maine. May 26, 1900.)

MORTGAGE

SET-OFF-JUDGMENTS-BREACH

OF WARRANTY-DAMAGES.

1. A judgment for damages for breach of a covenant of warranty in the conveyance of property will be allowed in reduction of the mortgage debt for such conveyance.

2. Where such judgment is not recovered till after judgment in a suit for foreclosure, but before foreclosure is complete, it will still be allowed in an equity process for that purpose.

3. Either party is entitled to have one judgment set off against the other, except as to taxable costs on which the attorney may have a lien.

See Bean v. Harrington, 34 Atl. 268, 88 Me. 460.

(Official.)

Exceptions from superior court, Kennebec county.

Bill by Augustus R. Harrington against Emery O. Bean. Decree for defendant, and plaintiff excepts. Decree for plaintiff.

Argued before PETERS, C. J., and EMERY, WHITEHOUSE, WISWELL, STROUT, and SAVAGE, JJ.

L. T. Carleton, for plaintiff. Fred Emery Beane, for defendant.

EMERY, J. Harrington, the plaintiff, purchased of Francis Dexter, the defendant's testator, a parcel of land in Wayne, and gave his note and a mortgage of the same land as security for part of the purchase money. Dexter, in his deed to Harrington, warranted the land to be free from all incumbrances. There was, however, an incumbrance of a right of flowage, which materially lessened the value of the land. After the death of Dexter the defendant, as administrator de bonis non with the will annexed, brought a writ of entry against Harrington to foreclose the mortgage. Harrington sought in that suit to have his claim for damages for breach of the covenant of warranty against incumbrances determined and allowed in reduction of, or set-off against, the mortgage debt. This was denied him upon the ground that the existence of the incumbrance was only a partial failure of consideration, and hence no defense at law to any part of the note. Bean v. Harrington, 88 Me. 460, 34 Atl. 268. Accordingly in the foreclosure suit, notwithstanding the injury done the mortgagor, the full amount of the note, principal and interest, was fixed as the sum to be paid by him to prevent a foreclosure. That case seems to have been con

tinued without the issuance of any writ of possession.

Harrington then brought an action for covenant broken against Bean, as representative of Dexter, deceased, and recovered a verdict and judgment for $350, as damages for the diminution in the value of the land. This judgment has not been paid, nor has any writ of possession issued in the foreclosure suit. The estate of Dexter is insolvent, and was represented insolvent February 10, 1896.

The question raised is whether Harrington is now entitled to have his judgment allowed in reduction of the amount to be paid to redeem the mortgage.

It is to be noted that the question arises in this case between the original mortgagor and mortgagee. What would be the rights of assignees without notice is not in question here. It is also to be noted that the mortgagor's claim against the mortgagee is not an independent claim to be allowed as a set-off, if at all, but is one that arose directly out of the mortgage transaction, and directly reduced the consideration of the mortgage. That such a claim ought, in "equity and good conscience," to be allowed on the mortgage debt should be self-evident, and is abundantly supported by decided casVan Riper v. Williams, 2 N. J. Eq. 407; Union Bank v. Pinner, 25 N. J. Eq. 495; Holbrook v. Bliss, 9 Allen, 69; Davis v. Bean, 114 Mass. 360; Northy v. Northy, 45 N. H. 141; Goodwin v. Henney, 49 Conn. 563.

es.

But it is urged that the court has already determined in the foreclosure suit that, in order to save the property, the mortgagor must pay the entire original purchase money and interest without any allowance for the damage the same court has since awarded him for the mortgagee's fault in the same transaction; and this, notwithstanding the utter insolvency of the mortgagee's estate. The case of Fuller v. Eastman, 81 Me. 286, 17 Atl. 67, is cited as conclusive against the power of the court to grant relief even in equity.

In that case, and the cases upon which it is based, the claim shut out in the second suit was one which was available in the first suit if seasonably interposed. In Fuller v. Eastman, the claim that payments had been made on the mortgage notes was available to the mortgagor in the foreclosure suit if he had then made such claim. Then was the time for him to make it, if ever. In this case, however, the mortgagor's claim was not of that kind. It was not available in the foreclosure suit. The mortgagor, indeed, offered it and pressed it in that suit, but the court refused to allow it. It was held to be an unliquidated claim, the amount of which was not ascertainable by calculation, and hence it was not allowable in set-off (Rev. St. c. 82, § 56), nor in reduction of the agreed price in an action at law on the mortgage (Bean v. Harrington, 88 Me. 460, 34 Atl. 268). Now, however, before the right to

« 이전계속 »