Hawley v. Belden

Reeve, Ch. J. This is an action brought to recover damages for not fulfilling a contract to make part of a turnpike road. Previous to entering into the contract by the defendant, the plaintiff had made a contract with a son of the defendant to make a section of the turnpike which had been set out to the plaintiff, to the acceptance of commissioners, by the 1st of October 1810. The son not having fufilled his contract, his father, on the 19th of October 1810, entered into the contract on which this suit is brought; in which he covenanted that the work should be finished according to the former contract of the son by the 1st of June 1811, and if any work done under the former contract should fail before that day, he should repair it. The plaintiff states, that a part of this work (describing it) failed on the 20th of October 1810, and that the defendant had not repaired it. On the trial of the cause, to shew that the work was badly done, the plaintiff offered to prove that the work where there was a causeway, fell down about the 20th of November 1811. To the admission of this testimony the defendant objected ; and the court admitted it. The admission of this testimony was correct; for if the causeway fell down on the 20th of November 1811, not quite six months after the road was by the contract to have been completed, it would shew that the workmanship was defective at the time it was built, or it would not without violence have fallen so soon afterwards. Testimony was offered by the plaintiff to prove that he had been put to great expense in repairing the road after the 1st of June, because the road was not then completed. This was objected to ; and admitted by the court. The admission was correct; for it was proper for the purpose of assessing damages. The defendant offered in evidence the certificate of the commissioners, dated the 8th of October 1810, that the gates might be erected, which certificate contained a reservation of the right to give further directions. On the objection of the plaintiff the court rejected this evidence ; and also rejected the testimony of Gen. Griswold, who was commissioner, commissioner, that he viewed the road, and gave no order. It was con [100] tended by the defendant, that the testimony ought to have been admitted ; for from this he might infer that the road was completed to the acceptance of the commissioners. So far as respects the certificate given, it can afford no ground for such inference; for the acceptance so far as to set up gates contains in it a reservation of a right to give further directions : so it rather proves that the road was not completed. The “ acceptance of the commissioners” mentioned in the contract means a full, absolute and entire acceptance ; whereas this is only a partial acceptance. And as to the commissioner not having given any order, it is no evidence of acceptance; for none is shewn but the before-mentioned partial acceptance; and the right to give further directions to repair the highway remained, although he gave none at the time he viewed the road. It would have been improper to admit the certificate on another ground; for it was dated the 8th of October 1810, and the contract on which this suit is brought was dated eleven days afterwards, at which time the contract being made to repair the road by the 1st of June to the acceptance of the commissioners demonstrates, that at the time of giving the certificate the road was not so completed. In this opinion the other Judges severally concurred. New trial not to be granted.