Loomis, J.
The first question for review presented by the motion is, whether the ruling of the court was correct, admitting as evidence in support of the declaration the act incorporating the defendant company and the proposition of Nathaniel Green therein referred to.
The argument in support of the objection to this evidence rests wholly on the assumption that it must have been received for the sole purpose of showing the duty of the defendants to supply water to the plaintiff’s boiler. If this was its sole office we concede the objection to be well taken, as within the principle decided in Nickerson v. Bridgeport Hydraulic Co., 46 Conn., 24. But the assumption is fallacious. The objection to the evidence was general, and no restriction was made when it was offered or received. If therefore it was admissible for any purpose it sufficiently vindicates the ruling of the court. Now the declaration, especially in the second count, alleges a contract between the parties whereby the defendants were obligated to supply the plaintiff with water. The contract raises the duty, the culpable omission to perform which furnishes the ground of liability. It was incumbent on the plaintiff therefore to prove a valid contract, and the defendants being a corporation necessarily of limited powers for contracting, one step surely in the chain of proof would be to show that the contract was intra vires and binding if made, which could only bo shown by the evidence objected to; and as to the proposition of Nathaniel Green, it was a part of the act of incorporation and admissible as such.
The next question in order is, whether the court erred in omitting to instruct the jury that there was a fatal variance [288]*288between the allegations and the proof in the two particulars mentioned.
This question arose, not upon objection to the evidence when offered, but only during the final argument to the jury, upon the defendants’ requests to the court as stated in the motion.
The court in its charge to the jury assumed that if the facts alleged in the requests were proved, the variance would be fatal, but submitted the matter to the jury contingently upon their finding as matter of fact. The defendants claim that where the facts are wholly undisputed and there is nothing for the jury to find, it is the duty of the court, if requested, to instruct them specifically whether or not there is a variance as claimed. We accept the proposition thus stated as correct.
The first ground of variance claimed respects the duration of the contract. In the first count the time during which the defendants were to furnish the water is indefinite, while in the second count it is one year. The request assumes that the proof shows that it was for sis months. The fact however is nowhere so found or stated in the evidence.
The motion merely recites certain evidential facts, namely, the use of the water by the plaintiff from and after the 4th day of October, 1869; two payments by the plaintiff at the request of the defendants, one of twenty-five dollars' made April 1st, 1870, for the water from that date until October 1st of the same year, and one during the latter month of thirty-seven dollars and fifty cents for the water until April 1st, 1871, the plaintiff claiming a mistake of 112.50 in the sum he intended to pay. And then, ffor several yeará after the last date, the defendants continued to present to the plaintiff bills for the use of the water, sometimes semiannually and sometimes quarterly at the rate of seventy-five dollars per year. From these items of evidence it was for the jury, and not the court, to infer the duration of the contract. The inference was wholly one of fact and not of law, and therefore the question was properly left to the jury.
The verdict shows they must have found either an indefinite [289]*289' time, oi’ one year. Whether this result was against the evidence or not, the present motion does not permit us to decide.
The disposal of the second ground of variance depends on the aixswer to be given to the question, whether an alleged coixtract “ to furnish the plaintiff with an abundant supply of water and deliver the same through the defendaixts’ water-pipes at and withiix the plaintiff’s dwelling-house,” is supported by proof of a contract to furnish the plaintiff with the water, “ and coixvey the same through the maiix pipe of the defendants to the poixxt whei’e that pipe conixects with the service pipes of the plaintiff, and thence through the latter pipes into the plaintiff’s dwelling-house.”
It will be observed that the subject matter and object of both contracts is the same—the funxisliing of the water, and that the place of delivery is the same—“in the plaintiff’s dwelling-house.” The only discrepancy relates to the ownership of a huixdred feet of pipes, through which the water was to be delivered into the plaintiff’s dwelling-house.
As a test of the substaixtial identity of the two contracts we will suppose the defendants, under just such a contract as is set up ixx the declaration, had furnished the plaintiff at all times an abundant supply of water in his dwelling-house and boiler, would it be possible to pi’edicate even the most technical breach of the contract on the fact that some person other than the defexxdants owned a small pox’tioxx of the pipes ? The very supposition seems absurd. The gist of the uixdertakixxg is to furnish the water at the place named. The ownership of a part of the conduit through which the water is to be delivered is an immatex’ial and superfluous matter. It is neither of the substaxxce of the issue, nor does it lxai’row or limit that which is essential. -
Again, to change the illustration, suppose A contracts to sell B a specified quantity of conx to be delivered by the fox’mer in his wagons at the store of the latter, axxd the proof is, that all the eox’n was actually delivei’ed by A at the place mentioned, but in delivering it he used a wagon belonging to B. Would xxot the last mexxtioned fact be deemed wholly [290]*290immaterial and would not the contract be fully performed ? Clearly so it seems to us; and the supposed case is quite analogous in principle to the one at bar. Wo conclude therefore that the court was under no obligation to charge the jury as requested.
In reviewing the question we have limited the discussion to the facts just as they were claimed in the court below in the defendants’ request, where the claim of variance was predicated wholly on the ownership of the pipes. But the argument in behalf of the defendants in this court seemed to base the claim upon a fact materially different—that the place for the delivery of the water was at the junction of the service pipes of the plaintiff with the street main pipe of the defendants. But as the request to the court below did not assume any such fact as proved, and the evidence was not objected to on the trial, we cannot give the defendants the benefit of the new question now made for the first time.
The defendants also claim to have been aggrieved by the ruling of the court admitting evidence that after April 1st, 1871, the defendants continued to present bills to the plaintiff for the use of the water.
It must of course be conceded that the question at issue was as to the terms of the contract at the time when the controversy arose, and not afterwards, and the evidence, to be admissible, must tend to throw light on that point.
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Loomis, J.
The first question for review presented by the motion is, whether the ruling of the court was correct, admitting as evidence in support of the declaration the act incorporating the defendant company and the proposition of Nathaniel Green therein referred to.
The argument in support of the objection to this evidence rests wholly on the assumption that it must have been received for the sole purpose of showing the duty of the defendants to supply water to the plaintiff’s boiler. If this was its sole office we concede the objection to be well taken, as within the principle decided in Nickerson v. Bridgeport Hydraulic Co., 46 Conn., 24. But the assumption is fallacious. The objection to the evidence was general, and no restriction was made when it was offered or received. If therefore it was admissible for any purpose it sufficiently vindicates the ruling of the court. Now the declaration, especially in the second count, alleges a contract between the parties whereby the defendants were obligated to supply the plaintiff with water. The contract raises the duty, the culpable omission to perform which furnishes the ground of liability. It was incumbent on the plaintiff therefore to prove a valid contract, and the defendants being a corporation necessarily of limited powers for contracting, one step surely in the chain of proof would be to show that the contract was intra vires and binding if made, which could only bo shown by the evidence objected to; and as to the proposition of Nathaniel Green, it was a part of the act of incorporation and admissible as such.
The next question in order is, whether the court erred in omitting to instruct the jury that there was a fatal variance [288]*288between the allegations and the proof in the two particulars mentioned.
This question arose, not upon objection to the evidence when offered, but only during the final argument to the jury, upon the defendants’ requests to the court as stated in the motion.
The court in its charge to the jury assumed that if the facts alleged in the requests were proved, the variance would be fatal, but submitted the matter to the jury contingently upon their finding as matter of fact. The defendants claim that where the facts are wholly undisputed and there is nothing for the jury to find, it is the duty of the court, if requested, to instruct them specifically whether or not there is a variance as claimed. We accept the proposition thus stated as correct.
The first ground of variance claimed respects the duration of the contract. In the first count the time during which the defendants were to furnish the water is indefinite, while in the second count it is one year. The request assumes that the proof shows that it was for sis months. The fact however is nowhere so found or stated in the evidence.
The motion merely recites certain evidential facts, namely, the use of the water by the plaintiff from and after the 4th day of October, 1869; two payments by the plaintiff at the request of the defendants, one of twenty-five dollars' made April 1st, 1870, for the water from that date until October 1st of the same year, and one during the latter month of thirty-seven dollars and fifty cents for the water until April 1st, 1871, the plaintiff claiming a mistake of 112.50 in the sum he intended to pay. And then, ffor several yeará after the last date, the defendants continued to present to the plaintiff bills for the use of the water, sometimes semiannually and sometimes quarterly at the rate of seventy-five dollars per year. From these items of evidence it was for the jury, and not the court, to infer the duration of the contract. The inference was wholly one of fact and not of law, and therefore the question was properly left to the jury.
The verdict shows they must have found either an indefinite [289]*289' time, oi’ one year. Whether this result was against the evidence or not, the present motion does not permit us to decide.
The disposal of the second ground of variance depends on the aixswer to be given to the question, whether an alleged coixtract “ to furnish the plaintiff with an abundant supply of water and deliver the same through the defendaixts’ water-pipes at and withiix the plaintiff’s dwelling-house,” is supported by proof of a contract to furnish the plaintiff with the water, “ and coixvey the same through the maiix pipe of the defendants to the poixxt whei’e that pipe conixects with the service pipes of the plaintiff, and thence through the latter pipes into the plaintiff’s dwelling-house.”
It will be observed that the subject matter and object of both contracts is the same—the funxisliing of the water, and that the place of delivery is the same—“in the plaintiff’s dwelling-house.” The only discrepancy relates to the ownership of a huixdred feet of pipes, through which the water was to be delivered into the plaintiff’s dwelling-house.
As a test of the substaixtial identity of the two contracts we will suppose the defendants, under just such a contract as is set up ixx the declaration, had furnished the plaintiff at all times an abundant supply of water in his dwelling-house and boiler, would it be possible to pi’edicate even the most technical breach of the contract on the fact that some person other than the defexxdants owned a small pox’tioxx of the pipes ? The very supposition seems absurd. The gist of the uixdertakixxg is to furnish the water at the place named. The ownership of a part of the conduit through which the water is to be delivered is an immatex’ial and superfluous matter. It is neither of the substaxxce of the issue, nor does it lxai’row or limit that which is essential. -
Again, to change the illustration, suppose A contracts to sell B a specified quantity of conx to be delivered by the fox’mer in his wagons at the store of the latter, axxd the proof is, that all the eox’n was actually delivei’ed by A at the place mentioned, but in delivering it he used a wagon belonging to B. Would xxot the last mexxtioned fact be deemed wholly [290]*290immaterial and would not the contract be fully performed ? Clearly so it seems to us; and the supposed case is quite analogous in principle to the one at bar. Wo conclude therefore that the court was under no obligation to charge the jury as requested.
In reviewing the question we have limited the discussion to the facts just as they were claimed in the court below in the defendants’ request, where the claim of variance was predicated wholly on the ownership of the pipes. But the argument in behalf of the defendants in this court seemed to base the claim upon a fact materially different—that the place for the delivery of the water was at the junction of the service pipes of the plaintiff with the street main pipe of the defendants. But as the request to the court below did not assume any such fact as proved, and the evidence was not objected to on the trial, we cannot give the defendants the benefit of the new question now made for the first time.
The defendants also claim to have been aggrieved by the ruling of the court admitting evidence that after April 1st, 1871, the defendants continued to present bills to the plaintiff for the use of the water.
It must of course be conceded that the question at issue was as to the terms of the contract at the time when the controversy arose, and not afterwards, and the evidence, to be admissible, must tend to throw light on that point.
The objection was not founded on any pretence that a change in the contract relations of the parties had occurred. It is virtually conceded that there was no change, and that the water continued to be furnished as before. Under these circumstances, in the absence of all direct evidence, the manner of dealing between the same parties relative to the same subject matter, for a reasonable3 time after as well as before the period of controversy, we think might tend to show inferentially how the parties regarded it at the very time in question. It may be suggested that the present case does not fall within the above principle for the reason that the evidence failed to show any corresponding action on the part of the plaintiff in the way of payment, or any response whatever to [291]*291the presentation of the bills. The evidence as received showed that the defendants continued to present bills for the use of the water, some quarterly, some semi-annually, but all at the rate of seventy-five dollars per year. Now, although this action was on the part of the defendants alone, yet it might be considered as in the nature of an admission, tending to show by inference how the defendants regarded the contract in respect to time.
The only remaining question is whether the court erred in declining to instruct the jury as requested, that if their verdict should be for the plaintiff they should designate upon which count it was found.
Where there are several counts for distinct and independent causes of action, or where there is no evidence at all applicable to some of the counts, it would doubtless be the duty of the court to comply with such a request. But where, as in this case, all the counts are for one and the same cause of action, and there is some evidence for the jury to consider applicable to each of the counts, the refusal of the court to comply with such a request is no ground for a new trial. Bulkley v. Andrews, 39 Conn., 523; Kearney v. Farrell, 28 Conn., 317; Stamford Bank v. Ferris, 17 Conn., 259.
A new trial is not advised.
In this opinion the other judges concurred.