Wilson v. Town of Greensboro

54 Vt. 533

• Court: Supreme Court of Vermont
• Decided: August 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, J.

The statute laws of the State, at the time when the contract was entered into between the plaintiff and defendant, required that all highways and bridges within the bounds of any town should be kept in good and sufficient repair at all seasons of the year; and made the town in which any special damage should happen to any person, by means of the insufficiency or want of repair of any such highway or bridge responsible for the same.

Previous to 1856 the matter of repairing highways and bridges was entrusted to officers elected or appointed by the towns ; and the money appropriated by the towns for that purpose was expended by them. In 1856 (Revised Laws Sec. 3086) a statute was passed empowering towns to direct their selectmen to make contracts for repairing iheir highways and bridges, for a term not exceeding four years. And in case such a contract was made, no highway surveyors were to be appointed, or highway tax to be assessed, during such term; but the town might raise a sufficient sum of money to support said highways. It was under that statute that the contract in question was entered into.

It was the obvious intention of the Legislature, by the enactment of that statute to enable towns, wherever, in their judgment, it might be economical or convenient, to provide by contract for the doing of what they were primarily under obligation to do in the matter of repairing their highways and bridges. That portion of the 3091st sec. which provides for a semi-annual inspection of the highway contracted to be kept in repair by the selectmen, and makes the obligation of the town to pay the contractor dependent upon the acceptance of the highway inspected, constituted the selectmen, as between the town and the contractor, judges of the fact as to whether the contractor had fulfilled his contract or not ; and power is given to the selectmen, at such inspection, or at a special inspection, if they find any repairs necessary, to notify the contractor of the fact, and if he does not make the same, provides that they may forthwith make such repairs at the expense of the contractor. No Inspection of the highway which the defendant contracted to keep in repair appears to have been made by the selectmen ; so that the question whether the defendant had kept the highways and bridges in repair as required by his contract had to be determined by the referee, upon such evidence as was offered; and no question has been made in this court as to the rule adopted by the referee in 'the ascertainment of the amount due to the plaintiff on account of his labor and expenditures under the’ contract. The only question here made is whether the damages paid by the defendant to Blair and Clary, and the amount paid to Clary for repairs, and the incidental expenses of the suit brought by Blair, can be applied in offset or in reduction of the plaintiff’s claim. The damages paid to Blair are found to have been the result of the want of repair of a bridge, which it was the duty of the plaintiff, under his contract, to have kept in repair. It is claimed that the payment of such damages is not provided for by the contract, and that it was not intended that they should be paid by the plaintiff. The intention of the Legislature, as we have seen, was to empower the towns to procure the duty that rested upon them to be performed by another ; and, although the towns were not by that law relieved from liability, yet, as between themselves and the party with whom they might contract, he was to be substituted for the towns to do that in relation to the repairs of highways and bridges which the towns were under legal obligation to do. The contract entered into by the parties effected such substitution, and bound the plaintiff to make such repairs upon the highways and bridges as the defendant was under legal obligation to have made. There is no other defensible construction that can be put upon the contract. The intention of the town, in making the contract, was, to thereby insure to the travelling public sufficient highways and bridges, and thus to protect themselves against any claim that might result from insufficiency; and the expectation of the plaintiff, as evidenced by the language of the contract, was, that he would keep the highways and bridges in such a state of repair that the town would be so protected. It is further claimed that the selectmen of the defendant town, having had such notice of the insufficiency of the bridge as the report finds that they did have, when the accident happened to Mrs. Blair, it, was their duty to make the necessary repairs of the same; and having neglected to do so, the plaintiff was not responsible for the damages that resulted from the want of them. While it is true that it was the duty of the defendant to act in good faith and do all that could be reasonably required to prevent the occurrence of any accident that would subject the plaintiff to liability, and contributory negligence on their part would exonerate the plaintiff, — it is to be borne in mind that it was the duty of the plaintiff to make the needed repairs to the bridge. And it is found that the selectmen of the defendant town had previous to the injury to Mrs. Blair, repeatedly called his attention to the condition of the bridge and the fact that it needed repairing ; that one of said selectmen, less than a week before the accident, notified him that the bridge needed immediate repair, and he assured said selectman that he would repair it the next day, but neglected to do so ; that the selectmen relied on his promise and assurance, and had good reason to do so, and did not know that the bridge was not repaired until after the accident.

If the plaintiff is relieved from responsibility, it cannot be upon the ground that there was contributory negligence upon the part of the selectmen of the defendant town. They had the right to rely upon the promise and assurance of the plaintiff, whose duty it was to make the repairs; and could not be said to be guilty of an omission of duty in not making them until they had notice, or good reason to believe that they had not been made by the plaintiff. Keyes v. Western Vermont Slate Co., 34 Vt. 81, was a suit to recover damages for the failure of the defendant to keep a drain in repair; and the defendant requested the court to instruct the jury that the measure of damages to the plaintiff for that neglect was the cost of the repairs, and not the detriment he might have suffered from the drain remaining out of repair. But the court charged that, if after the plaintiff gave the defendant notice that the drain was out of repair, and they recognized their obligation to repair it, and agreed from time to time to do so, but failed and neglected to repair it within a reasonable time, they were liable for such damages as the plaintiff had sustained as the immediate and necessary results of such neglect. In the opinion delivered by Poland, Ch. J., it is said : “ If, when the plaintiff requested the defendants to repair the drain, they had refused to do so, it would have been the duty of the plaintiff to have done it, and all he could have recovered would have been the cost of the repairs. He could not, in such a case, lie by and incur loss for want of the repairs far beyond the cost of fixing it, and make the defendants liable. But if the defendants, on having notice to repair the drain, admitted their liability to repair it, and promised tó do so, and thus kept the plaintiff from making the repairs, and thus prolonged the period of loss to the plaintiff, so that it exceeded the costs of the repairs, that loss should justly fall upon the defendants. If they omitted to make them, on being called on, and kept the plaintiff from doing it by false and delusive promises, they cannot complain of being made liable to the loss occasioned by the delay.” And in Eureka Marble Co. v. Windsor Mfg. Co., 51 Vt. 170, it is said that the damages which the complainants were entitled to recover were such as they, by the exercise of reasonable diligence and ordinary prudence, could not prevent under the circumstances in which they were placed.

Applying the law, as promulgated by these cases, to this, leads us to the conclusion that there was no negligence on the part of the selectmen of the defendant town that excuses the plaintiff from liability. The neglect of the plaintiff to make such repairs to the bridge where the accident happened to Mrs. Blair, as he was bound by his contract to make, was the proximate cause of her injury; and the amount, with the incidental expenses paid by the defendant to settle the claim to Mrs. Blair, should be deducted from the claim of the plaintiff. *

The damage paid by the defendant to Clary should be allowed. The damage to Clary’s horse was occasioned by a want of repair of the highway, which the plaintiff was bound by his contract to keep in repair. And there is no fact found that indicates that the defendant was negligent in not having made the repairs.

So, too, the amount paid Clary for repairs upon the highway should be allowed. The repairs were necessary and such as the plaintiff should have made, and by due diligence he would have ascertained that they were necessary ; and his neglect to make them justified the defendant in making them at his expense. The failure of the plaintiff to build the bridge and highway according to his contract, and to keep the highways in such a state of repair as the referee has found he was under obligation to do, is proper matter of defence to the plaintiff’s claim for compensation under his contract; and the amounts found due on account of such failures should be allowed.

It has been claimed that all of the above matters of defence should have been made by special plea, and are not available under the general issue. The obligations of the plaintiff, as specified in his contract, were in the nature of warranties ; and it has been repeatedly held that under the general issue the defendant might show that the plaintiff made a warranty that had been broken, and reduce the plaintiff’s recovery to the extent that he had sustained loss by the breach of the warranty. Allen v. Hooker, 25 Vt. 138; Keyes v. Western Vermont Slate Co., 34 Vt. 81. The rule upon the subject is stated in the case last cited to be, that however distinct and independent the several stipulations or covenants of the parties may be, if they are contained in the same instrument, the defendant may reduce the plaintiff’s recovery by showing the damages he has sustained by the non-performance on the part of the plaintiff; and this under the general issue. The sums thus allowed being in excess of the amount allowed to the plaintiff, the judgment of the County Court is reversed, and judgment on the report for the defendants for its cost.