Jones v. Town of Marlborough

Baldwin, J. It was a material allegation of the second count that the plaintiff’s services were rendered at the defendant’s request. The only proof of such a request, or of circumstances from which it could be implied, was the town vote and the arrangement which the parties entered into, under its provisions. No written contract was executed between the parties, except a bond, but that recited the fact that the plaintiff had, on the day of its date, which was also that of the town vote, contracted with the town to repair ^and maintain certain specified sections of its highways, in accordance with the specifications in the vote, and to the acceptance of the highway inspector, for five years from that day, for an annual compensation of $45, no payment to be made until the inspector had accepted the work. The finding shows that the services in question were rendered under the contract recited in the bond; that the work done was not in accordance with the specifications ; that the highway inspector, on May 20th, the day after it was completed, without making any formal inspection for report to the selectmen, drove over the roads, and regarded them as insufficient; that he told this to the plaintiff on the following day; and that if he had made a formal inspection, he would not have accepted them. The fact that the plaintiff acted in good faith and believed that he had done all that the specifications required, is immaterial. The contract required a more satisfactory test of its fulfillment,—the report of the inspector; and until that had been made in his favor, he was entitled to nothing. Such an inspection of a country road need not be made with any formality. Driving over it, in the course of other business may be sufficient, and in this case undoubtedly was, since the finding supports the result to which the inspector arrived. [589] The selectmen, having received no report of the inspection, subsequently extended the time for it, until July 14th, on which day a formal inspection was made, and an unfavorable report returned. Heavy rains had occurred since May 20th, which had destroyed the work of repair done before that day. This was the plaintiff’s misfortune, but did not enlarge the liabilities of the town. The roads had already been once sufficiently inspected on May 20th, and the plaintiff notified of the result. He was not injured by the omission of the inspector to make out any formal report at that time, for none could have been made that would have been of any assistance to him. Nor can the action be supported by the omission of the inspector to notify the plaintiff of the result of the later inspection. The town vote throws on the contractors the duty of obtaining and returning the inspector’s report, and unless a favorable report is thus returned, they are to “ forfeit their pay for their services.” It was therefore for the plaintiff to apply to the inspector for his report; and, had he done so, he would have learned that it had been already returned, and was one of disapproval. The pay stipulated was in the nature of an annual salary. It was not measured by the services that might be in fact required. In favorable seasons, the value of these might be much less than $45; while a single heavy storm, shortly before the inspection day, might call for such repairs as would subject the contractor to heavy loss. The plaintiff took his chances and must abide the result. The trial court applied in his favor the doctrine that in certain cases there may be a recovery for the value of labor and materials furnished under a special contract, not strictly performed, where the defendant has availed himself of and been benefited by them, and the plaintiff was not in wilful default. Pinches v. Swedish Evangelical Lutheran Church, 55 Conn. 183. This is not allowed in every instance where the part performance has been beneficial. It must also be shown that the benefit has been appropriated under circumstances sufficient to raise an implied promise to pay for the [590] reasonable value of what has been received, notwithstanding the breach of contract. 2 Smith’s Leading Cases (9th ed), 1126, note to Cutter v. Powell. Towns do not own their roads, nor use them. The public use them, and towns are benefited by their repair only so far as they may be thus relieved of a statutory responsibility for their proper maintenance. It may he that a promise to pay the value of permanent improvements, such as a stone pavement or a new bridge, furnished under a contract, though not in full accordance with it, would, under some circumstances, if they were retained as part of a highway, be implied by law; but in the case of ordinary repairs, made by one receiving an annual salary, the payment of which is made dependent on the favorable report of an inspector, no such obligation can arise. The town was not exonerated from liability under the statute unless its roads were in fact kept in good condition, and, as respects those to whom it entrusted the fulfillment of this duty in its behalf, it had the right to contract for making the certificate of inspection the sole criterion of what that condition was. There is error, and the judgment is reversed. In this opinion the other judges concurred.