[321] The opinion of the court was delivered by
Redeield, J.
In regard to the question of variance, it has been urged that it is unimportant, as, at all events, the general counts, which are found in the declaration, are suffi- • . .. ’ mi * ’ , cient to justify the recovery. 1 hat is true, when the terms of the special contract have been performed by both parties, so that nothing more remains to be done but the simple duty of paying for money, or labor, or goods, &c. But that is not this case. Here the claim, on the part of the plaintiffs, is founded expressly upon the non-performance of the special contract, and sounds in damages therefor wholly. In all such cases the declaration must be special, and if there be a variance it is fatal.
We think, however, that there is no variance in the present case. The first count, after a very long inducement, in stating the obligation, adopts very nearly the words of the contract itself. ■ This is sometimes sufficient and sometimes not. That depends upon the degree of precision and certainty with which the contract is drawn. All contracts, however vague and uncertain in their import, when brought before courts, must be enforced in some way, unless they are so imperfect that it is apparent either that the minds of the parties never did meet, and so no contract was made, or else that the parties omitted such parts of the writing as to leave it mere conjecture what was intended. In all other cases courts will put such construction upon the contract as will, most probably, all things considered, coincide with the expectations of the parties, at the time of entering into the contract. But in regard to a declaration, it should be certain to a common intent, and where the contract is not so it becomes the duty of the pleader intelligibly to express that view of the contract upon which the plaintiff’s claim is -founded. If this is not done, the declaration will be bad upon demurrer, and many times on motion in arrest of judgment. It could hardly be said, with propriety, that such a case presented any question of variance, for the declaration, instead of being, as it should be, a description of the contract, in the language of the law, is a description of it in its own language; but it is not, on that account, any less a description of it.
But, in the second count, the plaintiffs have declared upon [322] the contract according to what they conceive or claim to be its legal import, i. e. that in consideration, the plaintiffs would pay defendants twenty-five dollars annually for the term of twenty years, the defendants promised them that they would lay out their road so as to cross this bridge, and would support the bridge for the same term. Now it is said this is not the fail-import of the contract. We think any other construction would render it a very absurd contract, on the part of the town. If the town had a bridge which the defendants wished to use, it is hardly supposable that the plaintiffs would consent to pay them an annuity of twenty five dollars to induce them to use it, and still permit them to abandon it at will. It is not shown that this bridge required immediate repairs. Very likely it might continue to subserve the purpose of its erection many years, without requiring very much repairs. But, within the twenty years, it would require to be rebuilt; and from accidents, perhaps, it might be necessary to rebuild it more than once. To allow the defendants, then, to abandon, at will, would be to pay them a premium to induce them to use the bridge while it did last. The consideration for the plaintiffs’ promise was the risk which the defendants incurred in undertaking to support the bridge for the term agreed. This construction is surely quite as consistent with the terms of the contract as any other, and it is the only one which makes its mutual obligations in any sense equal, or reasonable, or probable.
In regard to the right of towns to make such contracts we entertain no doubt. It is true, indeed, that towns can only bind themselves by such contracts as come within the scope of the legitimate objects of their creation. In regard to these objects, their discretion, in order to consist with the degree of freedom necessary properly to consult their own interests, must be, in a great measure, unlimited. One of these objects is the maintaining of public highways. They might, no doubt, contract with an individual to build a road or bridge, and to repair it, or to warrant it to stand, without repair, for any reasonable number of years, for a stated sum, at once, or by instalments, or for a specified annuity. And that case is, in principle, the same with the present. Such a course, in regard to building bridges, is not an uncommon one, and, to my knowledge, its legality has never been questioned. It [323] Is but applying to the present subject-matter the principle of the cases which have already been decided, in relation to the powers of towns. Hazen v. Strong, 2 Vt. R. 427. Briggs v. Whipple, 6 Vt. R. 90. Pawlet v. Strong, 2 Vt. R. 442. Schoffv. Bloomfield, 8 Vt. R. 472.
In regard to the authority of the defendants to enter into such a contract, we think it is precisely commensurate with that of towns, so far as respects the building and repairing of their road, which is the object of their creation. We do not perceive any good reason why such a contract as the present, with a view to save some portion of the expense of supporting an expensive bridge upon their road, would not come legitimately within the range of their discretion. If courts should undertake to place any very nice, certainly any very narrow, limits upon the exercise of such a discretion, either by towns or turnpike corporations, it would be likely to defeat the object of conferring such powers. We do not say it has no limits, but only that they are far beyond the boundaries t,o which this contract leads.
The power of the director to make the contract on the part of the defendants, depends upon the by-laws of the corporation, which are the statutes limiting and defining the powers of all private corporations, with one qualification, that they be not inconsistent with their several charters. The director, who made this contract, was the sole director for the year. By the by-laws, he had authority ‘ to make all ‘ necessary contracts, on behalf of the corporation, for the pur- £ pose of carrying into effect the objects of the grant.’ He had, in express words, during his term of office, the entire power of the corporation, which, we have considered, was sufficient for the purpose of making this contract.
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[321] The opinion of the court was delivered by
Redeield, J.
In regard to the question of variance, it has been urged that it is unimportant, as, at all events, the general counts, which are found in the declaration, are suffi- • . .. ’ mi * ’ , cient to justify the recovery. 1 hat is true, when the terms of the special contract have been performed by both parties, so that nothing more remains to be done but the simple duty of paying for money, or labor, or goods, &c. But that is not this case. Here the claim, on the part of the plaintiffs, is founded expressly upon the non-performance of the special contract, and sounds in damages therefor wholly. In all such cases the declaration must be special, and if there be a variance it is fatal.
We think, however, that there is no variance in the present case. The first count, after a very long inducement, in stating the obligation, adopts very nearly the words of the contract itself. ■ This is sometimes sufficient and sometimes not. That depends upon the degree of precision and certainty with which the contract is drawn. All contracts, however vague and uncertain in their import, when brought before courts, must be enforced in some way, unless they are so imperfect that it is apparent either that the minds of the parties never did meet, and so no contract was made, or else that the parties omitted such parts of the writing as to leave it mere conjecture what was intended. In all other cases courts will put such construction upon the contract as will, most probably, all things considered, coincide with the expectations of the parties, at the time of entering into the contract. But in regard to a declaration, it should be certain to a common intent, and where the contract is not so it becomes the duty of the pleader intelligibly to express that view of the contract upon which the plaintiff’s claim is -founded. If this is not done, the declaration will be bad upon demurrer, and many times on motion in arrest of judgment. It could hardly be said, with propriety, that such a case presented any question of variance, for the declaration, instead of being, as it should be, a description of the contract, in the language of the law, is a description of it in its own language; but it is not, on that account, any less a description of it.
But, in the second count, the plaintiffs have declared upon [322] the contract according to what they conceive or claim to be its legal import, i. e. that in consideration, the plaintiffs would pay defendants twenty-five dollars annually for the term of twenty years, the defendants promised them that they would lay out their road so as to cross this bridge, and would support the bridge for the same term. Now it is said this is not the fail-import of the contract. We think any other construction would render it a very absurd contract, on the part of the town. If the town had a bridge which the defendants wished to use, it is hardly supposable that the plaintiffs would consent to pay them an annuity of twenty five dollars to induce them to use it, and still permit them to abandon it at will. It is not shown that this bridge required immediate repairs. Very likely it might continue to subserve the purpose of its erection many years, without requiring very much repairs. But, within the twenty years, it would require to be rebuilt; and from accidents, perhaps, it might be necessary to rebuild it more than once. To allow the defendants, then, to abandon, at will, would be to pay them a premium to induce them to use the bridge while it did last. The consideration for the plaintiffs’ promise was the risk which the defendants incurred in undertaking to support the bridge for the term agreed. This construction is surely quite as consistent with the terms of the contract as any other, and it is the only one which makes its mutual obligations in any sense equal, or reasonable, or probable.
In regard to the right of towns to make such contracts we entertain no doubt. It is true, indeed, that towns can only bind themselves by such contracts as come within the scope of the legitimate objects of their creation. In regard to these objects, their discretion, in order to consist with the degree of freedom necessary properly to consult their own interests, must be, in a great measure, unlimited. One of these objects is the maintaining of public highways. They might, no doubt, contract with an individual to build a road or bridge, and to repair it, or to warrant it to stand, without repair, for any reasonable number of years, for a stated sum, at once, or by instalments, or for a specified annuity. And that case is, in principle, the same with the present. Such a course, in regard to building bridges, is not an uncommon one, and, to my knowledge, its legality has never been questioned. It [323] Is but applying to the present subject-matter the principle of the cases which have already been decided, in relation to the powers of towns. Hazen v. Strong, 2 Vt. R. 427. Briggs v. Whipple, 6 Vt. R. 90. Pawlet v. Strong, 2 Vt. R. 442. Schoffv. Bloomfield, 8 Vt. R. 472.
In regard to the authority of the defendants to enter into such a contract, we think it is precisely commensurate with that of towns, so far as respects the building and repairing of their road, which is the object of their creation. We do not perceive any good reason why such a contract as the present, with a view to save some portion of the expense of supporting an expensive bridge upon their road, would not come legitimately within the range of their discretion. If courts should undertake to place any very nice, certainly any very narrow, limits upon the exercise of such a discretion, either by towns or turnpike corporations, it would be likely to defeat the object of conferring such powers. We do not say it has no limits, but only that they are far beyond the boundaries t,o which this contract leads.
The power of the director to make the contract on the part of the defendants, depends upon the by-laws of the corporation, which are the statutes limiting and defining the powers of all private corporations, with one qualification, that they be not inconsistent with their several charters. The director, who made this contract, was the sole director for the year. By the by-laws, he had authority ‘ to make all ‘ necessary contracts, on behalf of the corporation, for the pur- £ pose of carrying into effect the objects of the grant.’ He had, in express words, during his term of office, the entire power of the corporation, which, we have considered, was sufficient for the purpose of making this contract.
There are two other points in the case, upon which we have had more difficulty. We do not perceive how there was any very satisfactory evidence of the loss of the original written contract. It is true search was made where this contract would most likely have been, but there was no legal evidence that the contract ever was in fact in either of the places where search was made. It is true, too, that what purported to be a copy of it was found on the town books, in the hand-writing of the clerk, perhaps. But the clerk was not called to verify the copy, upon oath. If he had been, [324] very likely some clew might have been gained of the present existence, or of the loss, or destruction of the paper. But surety ^ie town clerk could not authenticate the copy of the contracts of the town, by recording them, any more than he cou^ the contracts of other persons. The transcript on the town books was in no sense a record. It afforded no legal evidence of the existence even of the original, much less of. its place of deposit, or custody. Mr. Edgerton clearly could not, from memory merely, verify this copy. It was not then shown to be a copy. No legal proof was offered to show that search had been in fact made for this paper where it had ever been. And still such circumstances were developed as would render it desirable that inquiry should be made of the town clerk, at least, if his testimony could be had. As this defect in the trial is upon a point not always very material to the merits of the controversy, and when this case could not form a rule for another, as all such questions must depend mainly upon their own circumstances, we might have possibly been inclined to get along with it if it wrere not for the insuperable difficulty in regard to the rule of damages given to the jury.
The rule of damages, in this case, should have been to give the plaintiffs the difference between what they were to pay the defendants and the probable expense of performing the contract, and thus assess the entire damages for the remaining twelve years. This is a plain and obvious rule, and one not very difficult to explain to the comprehension of a jury. In looking into the charge of the court below, it is not easy to say precisely what rule the court did intend to lay down. It is certain it is not the one now given. In one particular it would seem to have been more favorable to the defendants than it should have been, of which they cannot complain ; but, in another point, it might operate seriously against them. I mean the jury being instructed to take into the account, in assessing damages, that the defendants had laid their road across the plaintiffs’ bridge at another place of the river. It is not explained how this was expected to affect the damages. It is of course uncertain how it did affect them in the mind of the jury. And as it is certain, from the present state of the case, that this circumstance lay wholly out of the range [325] of the proper inquiry, in relation to damages, the judgment is reversed, and a new trial granted.