Southworth v. Lathrop

5 Day 237

• Court: Supreme Court of Connecticut
• Decided: June 15, 1812
• Status: Published

Opinion

Edmond, J.

By this motion, two questions are presented to the consideration of the court, vis. Whether, after the court had found the issue in favour of the petitioner, and determined to grant the prayer of the petition, and a bill ii; form thereon was offered, any further testimony was admissible 1 and if admissible at that time, whether the testimony of General Gordon, a commissioner on the road, and other parol testimony, was admissible to prove that the road was not kept in repair to the acceptance of the commissioners 1 and that the injury to Warren’s property was in consequence of a break in the road on Great Hill?

In answer to the first question, which respects only the lime of offering the testimony, I am of opinion, that upon the hearing, on a bill in form, testimony may be admitted, and with as much propriety as on a hearing in damages, t’nil! (he bill in form is passed, the case is subjudicc, and by the court’s saying, the petilion is granted, nothing more is intended than that such and so many of (he facts stated in the petition are proved, as to entitle the petitioner, in the opinion of the court, to some relief: what that relief shall be, and to what extent, remains to be settled on hearing, when the bill in form is presented. The enquiry, therefore, was proper in point of time.

In relation to the other question, it being stated in tin petition, that the petitioner, for want of knowledge respect ing the obligatory writing, executed and delivered by tin ,i -¡¡omien!, and in the hands of the respondent, he vas unable to describe the same, so as to maintain a suit at law thereon, on hearing the parties on the petition, the court found what that writing or agreement was, namely, that the respondent, Lathrop, agreed to repair the turnpike road from the gate of Simam fVoodmorth, in Mansfield, to Joshua Hyde’s, in Franklin, and keep the same in repair, to the acceptance of the commissioners appointed by the General Assembly to inspect and view said road, &c. The court having found this agree-meni, it became essential to the passing of adecree, that should do justice between the parties, to ascertain whether the respondent had failed to perform this contract; for the respondent having agreed to “ repair the road, and keep it in repair,” if he had not done it, it followed, that he was liable for the damage done to Warren’s property, for want of necessary repair ; for although the contract found, contained no clause of indemnify, yet the undertaking was absolute ; a duty was thereby created, and a neglect or non-performance of this duty, draws after it the consequence of liability to damages, as much as if the contract had contained express words of indemnity. Whether the road, then, was put in repair, and kept in repair to the acceptance of the commissioners, were questions of fact, to be ascertained by the testimony of the commissioners, or other testimony, in the same manner, as any other fact is to be ascertained in a court of law: And the testimony of Gordon, one of the commissioners, was better evidence of these facts than could be drawn from any ministerial acts of the commissioners: And whether the injury to Warren's property, was owing to the state of the road, was necessary to be known, in order to determine whether the respondent ought to be subjected to those damages.

For these reasons, 1 am of opinion that a new trial ought not to be granted.

All the other Judges concurred in this opinion.

New trial not to be granted,