Colby v. Town of Franklin

-Ry ^ie Court, Cole, J. We think the non-suit in this case was improperly granted. There was testimony sufficient to go to the jury, not only that the supervisors of the town waived the completion of the work according to the precise terms of the contract, but further that they agreed to [313] accept the work as it had been performed. There can be no doubt but it was competent for the supervisors, in behalf the town, to waive any departure from the specifications in the contract. They were the agents of the town, duly author-i , _ , ized to act and speak for it m that behalf. So that the grade might be less than 200 feet long, or the cuts in the hills each side the ravine not as wide as the contract called for; still if the supervisors concluded to accept of the work in that condition, they could most certainly do so, and bind the town. The contract was one between the town, acting through its supervisors, and Lyon and Colby. When the work was completed, it was to be' accepted by the town acting through the same agents. It is suggested on the brief of the counsel for the respondent, that the supervisors mentioned in the contract acted in the character of umpires between the contractors and the town, and their acceptance was a condition precedent to their right to recover for the price of the work, and must consequently be alleged and proved. This we deem an erroneous view of the contract. The agreement was one between the contractors and the town. When the work was done, it was to be accepted by the town acting by and through its supervisors, whosoever they might be, and not by the particular individuals named in the contract. So the case is not analogous to one where a person agrees with another to do a piece of work in a particular manner to the satisfaction of a third person, who thereby becomes the agent of both parties for the purpose of accepting the work. - And when, in this case, the work was accepted by the supervisors, it was accepted by the town, or by the party of the first part. That there was testimony in the case tending to show that the work was accepted by the supervisors, is clear. The appellant himself testified, that in May, 1860, he and the man who had done the work, Lyon, and two of the supervisors, were present and measured the work. He says : “ The supervisors first objected because the cuts in the hill each side the ravine, were not as wide as the contract called for, but after discussing the matter, they came to the conclusion that it was better as it was,” &c. Again he adds : “ At one end of [314] the road we found a small hole, where some one had dug out sand, about which they (the supervisors) found some fault at first, but finally concluded that it was all right." Again, the witness John Happen testified in substance, that he was present in the spring when the work was examined by the two supervisors, Egan and Grates; that the supervisors measured the width of the road, and found it 14 feet in the narrowest place on the top ; they thought it was high enough. Egan said, “ Colby, I have nothing against the work, but you must wait a little for your money,” &c. There is other testimony to the same effect. Therefore, although the work was not completed in strict accordance with the terms of the contract, we still think that there was proof sufficient to go to the jury, tending to show that the supervisors, on behalf of the town, waived the deviations from the contract, and accepted the work as it was. The judgment of non-suit must therefore be set aside, and a new trial ordered.