Coburn v. City of Hartford

Foster, J. Several questions arose on the trial of this action in the court below; among them, one as to the character of the contract entered into between Soper and the defendants. The defendants claimed that it was an entire contract; and inasmuch as the work was not done on the 28th of October, 1870, when the copy was left with them in service, nothing was then due to Soper, and so there could be no recovery in this action. The plaintiffs denied this to be the true construction of the contract, and insisted that it was not entire, but apportionable; and that there was a sum- due Soper from the defendants when the copy was left in service, more than sufficient to pay the debt due the plaintiffs. It appeared that the city had, on orders Of the common council, made payments to persons employed in doing work of the same character before the entire contract was completed ; and though no such payments had been called for or made in this case, the plaintiffs claimed that this contract might fairly be construed to have been made with such an understanding implied. The plaintiffs further claimed that the contract had been waived by both parties, and that the defendants therefore were liable to Soper for the amount of work done when the copy was left with them in service. The court decided that this contract was entire and not apportionable, and that we have no doubt is the correct construction. The terms of the contract are plain, simple, and intelligible. Soper was to furnish the materials and construct the sewer under the direction, and to the satisfaction of the city surveyor ; the work to be completed on or before the 15th [293] of October, 1870, at a specified price per running or lineal foot The fact that the city had made payments to parties on similar contracts during the progress of the work, can have no effect upon this contract; it is in writing; it must speak for itsell,- and it speaks the language of an entire contract. The work was not completed till the 14th of November, 1870, and on that day the common council of the city, by vote, directed the payment of the bill. This, and -this is all the evidence there is on this subject, certainly does not show that the parties had waived or abandoned the contract, and that Soper was at work on a quantum meruit. The most that can properly be claimed from it is that Soper failed to complete his work within the time specified, and that the defendants did not insist on regarding that as a breach of the contract. That therefore still remained a subsisting, entire contract, in no way altered except by an extension of the time for its performance. The defendants became liable for the work done under this contract on the 14th of November, 1870, and not before, for till then it was not completed. They were not indebted when the copy was left in service on the 28th of October, 1870, and so the plaintiffs are. not entitled to recover. Our statute, page 70, § 299, quoted by the plaintiffs’ counsel, is applicable to an existing 'debt payable at a future day. Here there was no existing debt. The ruling in the court below as to the character of -this contract was correct, and as the decision of this question disposes of the case, it is unnecessary to consider the other points made in the motion. ; A new trial is denied. In this opinion the other judges concurred.