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Dec. 182, the court say: “It may now be considered as the settled law that that where one party has entered into a special contract to perform work for another and furnish materials, and the work is done and the materials furnished, but not in the manner stipulated in the contract, yet, if the work and materials are of any value and benefit to the other party, he is answerable to the amount whereby he is benefited”-citing Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 268.

In accordance with this view, the rule in this class of cases was subsequently stated by Mr. Greenleaf as follows:

"Here, though, the plaintiff cannot recover upon the contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which upon the whole the defendant has de rived from what he has done." 2 Green. Ev. § 108. "If he endeavored in good faith to perform, and did substantially perform the agreement, he was entitled to recover for his services the contract price after deducting so much as they were worth less, on account of such imperfect performance of the contract." Hattin v. Chase, 88 Me. 237, 33 Atl. 989, and cases cited. “He is entitled to recover the fair value of his services, having regard to ' and not exceeding the contract price after deducting the damages sustained by the defendant on account of the breach of the stipulations in the contract.” Blood v. Wilson, 141 Mass. 25, 6 N. E. 362; Powell v. Howard, 109 Mass. 192;. Veazie v. Bangor, 51 Maine, 509.

In some of these and other similar cases reference is made to the "deduction," "reroupment,", or "set-off” of the defendant's damages for the obvious purpose of indicating a convenient process or method of ascertaining what the services rendered by the plaintiff were reasonably worth, and not with the intention of casting upon the de fendant the burden of proving the value of the plaintiff's services. It is incumbent upon the plaintiff in such cases to prove the value of the work done or materials furnished by him. The question of recoupment, properly so termed, is not involved. But, if the plaintiff's breach of the contract be such as to subject the defendant to consequential damage, that may be the foundation for a legitimate claim in recoupment, with respect to wbieh the burden of proof would be upon the defendant. Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455.

But in the case at bar the plaintiff contends that the contract is not properly apportionable, and that performance of six months' service should not be held a condition precedent to recovery of the semiannual installment of $1,000, which the defendant agreed to pay for the service specified.

Whether a given stipulation is to be deemed a condition precedent, a condition subse. quent, or an independent agreement is purely a question of intent. "And the intention

must be determined by considering, not only the words of the particular clause, but also the language of the whole contract, as well as the nature of the act required and the subject-matter to which it relates.” Bucksport & B. R. R. Co. V. Brewer, 67 Me. 295, and cases cited.

When the contract in question is examined in the light of these practical considerations, it cannot be doubted that the stipulation for the supply of potable water and the hydrant service specified in paragraph 1 of the contract was intended and understood by the parties as a condition precedent, and that it was to be strictly performed each six months before the defendant could be held liable to pay the $1,000 installment.

In Winfield Water Co. v. Winfield, 51 Kan. 104, 33 Pac. 714, a case strikingly analagous to that at bar, the court say: "Where suit is brought, as in this case, to recover hydrant rentals for six months, if it be shown that the plaintiff has failed to substantially comply with its contract, the burden rests on the plaintiff to show the value of the services actually performed by it for the city, and the defendant would be entitled to show any damages sustained by it by reason of the plaintiff's failure. The plaintiff could not recover more than the value of the seryices rendered to the city over and above alt damages occasioned by plaintiff's failure. It may be that there would be great practical difficulty in showing the actual value to the city of the water furnished. If so, it is not the fault of the city, but of the plaintiff. The rights of the parties are defined by the contract, and the party which violates the contract, and fails to comply with its provi. sions, must suffer rather than the innocent one." Inasmuch as the defendant corporation made the contract in question for the benefit of the inhabitants of the village, and suffered but slight injury in its corporate capacity, it would be a manifest injustice to compel the defendant to rely upon its claim for damages by way of recoupment and as sume the burden of proving the reasonable value of the plaintiff's services. See, also, Sykes v. St. Cloud, 60 Minn. 442, 62 N. W. 613.

Again, it is manifest that the stipulation must in any event lose its character as a condition precedent by reason of the acceptance of the service and continued use of the water. But, in view of the peculiarities which necessarily characterize the sale and delivery of water through a system of waterworks, it is manifest that the mere receipt and consumption of water under such a contract would not conclusively show an ceptance of the service as a performance of its contract. Considerable time might be required to determine whether or not the imperfect service was caused by the “unavoidable accidents" excepted in the contract, and under such circumstances a due regard for the necessities of the people would render a

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discontinuance of the use of the water un be apprised with reasonable certainty where the reasonable and impracticable.

way is sought to be located. Finally, the plaintiff complains that the

(Ed. Note.-For cases in point, see Cent. Dig.'

vol. 23, Highways, &$ 53-55.] rule of damages given "allowed the jury to

3. SAME-EVIDENCE. disregard the contract altogether, and af

The selectmen's return is prima facie evi. forded no tangible basis for fixing the value dence of the fact that they gave notice on the of the services rendered." Upon this point, petition, and also of such other facts as were as has been noted, the final instruction was

required by law to be embraced in the notice,

such as that the notice contained a description as follows:

of the way, and what it was. “The contract was for $1,037.50 for every 4. SAME — PRESUMPTIONS - COLLATERAL ATsix months. That isn't controlling. It may TACK. be considered by you. There may have been

In a case where the original petition is not

in existence, and the return of the selectmen elements of profit in the contract. It may states that it was for a townway, “beginning on have been advantageous to the plaintiff, or the north side of West Front street, and running it may have been advantageous to the de

towards the Kennebec river," that they gave

notice of their intention to lay out “the same," fendant. And whatever advantages they

and that they stated in their notice the “terwould get out of their contract, of course, mini thereof," and when it appears that the they are entitled to. The plaintiff here is use of the way has been acquiesced in many entitled not to its contract price, or to any

years, it is held that there is a prima facie

presumption, at least, that the petition was sufadvantage which it might have by its con ficient in form to give the selectmen jurisdictract, but is entitled to the reasonable worth tion to act, and it is not open to collateral atof the service to the purchaser.

tack. “So far as the potable water problem is

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 25, Highways, § 168.) concerned, as bearing upon the question, the

5. SAME. rule applies to that feature also. You are

In such a case it is also to be presumed simply to answer how much less the service that the laying out was in accordance with the was worth to the corporation for corporation

petition. purposes, by reason of any impurity in the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 25, Highways, 88 168–172.) water."

6. SAME. This, considered in connection with other

In such a case it is no objection that the parts of the charge, gave the jury to under way as laid out consisted of two streets runstand that in adopting a statement of value ning at an angle with each other, which were de for the assessment of damages the parties

scribed separately in the return, but connecting

and forming one way; it not being shown that were to be considered as entitled to any ad

the petition with the termini named in it called vantages they would have derived from the for only one street substantially, in one direccontract as far as the element of profit was

tion. The presumption as to the petition is

otherwise, concerned; but in case of partial perform

[Ed. Note.-For cases in point, see Cent. Dig. ance the plaintiff was not entitled to the vol. 25, Highways, 88 168-172.) contract price, nor to any advantage from 7. SAME. the contract in the maintenance of the suit, The acceptance by the town of a "road" but it was entitled to recover the fair value

as laid out by the selectmen from “West Front

street to Alder street" was sufficient, though it of the service, having regard to the contract

appears that the road consisted of two connectprice and “considering how much less the ing streets, running at an angle with each

other. service was worth to the corporation” by reason of the plaintiff's breach of the con

(Official.) tract.

Agreed Statement from Supreme Judicial It is the opinion of the court that the in- | Court, Somerset County. structions as a whole, as applied to the facts Action by Walter S. Cushing against George in this case, were substantially correct, and H. Webb. Heard on an agreed statement of not prejudicial to the plaintiff.

facts. Judgment for defendant. Exceptions overruled.

Action of trespass quare clausum fregit for breaking and entering the plaintiff's

close; the same being a lot on the south side (102 Me. 157)

of the Kennebec river, in the village of SkowCUSHING V. WEBB.

hegan. The defendant was the duly qualified

road commissioner for the town of Skowhe(Supreme Judicial Court of Maine. Nov. 30, 1906.)

gan on the day of the entry. He admitted

the entry, but claimed a justification by rea. 1. HIGHWAYS ESTABLISHMENT PETITIONGJURISDICTION OF SELECTMEN.

son of the fact that the locus was within the A petition for a way is necessary to give limits of Bridge street which he claimed was selectmen jurisdiction to lay out a townway a duly located townway in Skowhegan. The under the statute.

existence of such a way was denied by the [Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 47.)

plaintiff. This raised the issue whether or

not Bridge street was ever legally laid out 2. SAME-DEFINITENESS. The way must be described in the petition,

as a townway, and so accepted by the town. and with such definiteness that, when notice of

At the March term, 1906, of the Supreme it is given, the public and property owners will Judicial Court, Somerset county, an agreed

KENNEBEC RIVER

NONTN MANNEL

ATTEN

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statement of facts was filed, and the case 1886 contained the following article: sent to the law court for determination with "To see if the town will vote to accept the the agreement that, if the entry by the de following roads as laid out by the selectmen. fendant was without authority of law, judg. First, a road from West Front street to Alment should be rendered for the plaintiff for der street." nominal damages; otherwise judgment to be Under that article the following vote was for the defendant.

passed: All the material facts are stated in the "Voted to accept the road as laid out by the opinion.

selectmen, a road from West Front street to Argued before WISWELL, C. J., and Alder street." EMERY, SAVAGE, POWERS, PEABODY, It is admitted that the original petition askand SPEAR, JJ.

ing for the laying out of the road from West Gould & Lawrence, for plaintiff. Butler

Front street towards the Kennebec river is & Butler, for defendant.

not now in existence, having been lost or

destroyed. SAVAGE, J. Trespass quare clausum. The

A reference to the accompanying sketch

will show the situation more plainly. title of the plaintiff and the entry by the defendant are admitted. The defendant, who was the road commissioner of Skowhegan, claims a justification by reason of the fact that the locus was within the limits of Bridge street, a duly located townway in Skowhe gan. The existence of such a townway is denied by the plaintiff. The only question raised is whether Bridge street was ever legally laid out as a townway, and so accept

N ed by the town.

The records of the town show that in 1885 and 1886 proceedings relative to the location of a townway or ways in Skowbegan village were had, as shown by the return of the selectmen, and the warrant for a town meeting and the vote of the town thereon, as follows, so far as necessary to quote:

“The subscribers, selectmen of Skowhegan, @b. FIRST DESCRIPTION IN RETURN OF SELECTMEN upon application of James B. Dascomb and others to lay out a townway in said town, The statute (Rev. St. 1883, c. 18, § 14) beginning on the north side of West Front under which the selectmen acted is as folstreet and running towards the Kennebec lows: "The municipal officers of a town may river, having given seven days' notice of our personally or by agency lay out, alter or widintentions to lay out the same and stated in en town ways and private ways, said notice the termini thereof by posting on petition therefor. They shall give written said notice in two public places.

notice of their intentions to be posted for "We therefore lay out said way as follows: seven days, in two public places in the town Beginning in the northerly side of West Front and in the vicinity of the way, describing it street at the southerly corner of George W. in such notice. Durrell's lot and 20 feet easterly from said The plaintiff claims that the record is incorner; thence north 15 degrees west 12 rods; sufficient to show a legal laying out in four thence north 19 degrees west 41 rods; all particulars: First, that the petition was inof said distances are over the land of John sufficient for lack of definiteness to confer Turner.

jurisdiction on the selectmen; again, that “Said line is the center line and said street the notice given by the selectmen was insufis to be forty feet wide.

ficient because it failed to warn property “Also another street leading easterly from holders of any specific way which would be the above street. Beginning at the south ascertained with any reasonable certainty: westerly corner of the Morrill lot and one then that the actual taying out was not jusand one half rods southerly from said cor- tified by the petition; and, finally, that the ner, thence north fifty seven degrees east 15 road was never accepted by the town. rods over land of John Turner to line between It is evident that a petition for a way is said Turner and land belonging to the Parker necessary to give seleetmen jurisdiction to estate to Alder Street; said line is the center lay out a way under the statute.

And we line and said street is to be thrée rods think, also, that such a petition must be so wide.

*" This return was signed by definite that, when notice of it is given, the the selectmen, and was dated February 15, public and property owners will be apprised 1886. The road laid out in the second of the with reasonable certainty where the way is above description is Bridge street, and is the sought to be located. While the statute does locus of the entry complained of.

not in terms require the petition to describe The warrant for the annual meeting of the way, as it does in cases of petitions to

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the county commissioners for the laying out of laid out consists of two streets, which are highways (Rev. St. 1903, c. 23, & 1), it does described separately in the return. They require the selectmen to describe the way in connect and form one way. The argument their notice. And, as their jurisdiction is that the way as laid out had more than two based upon the petition, it is reasonably to termini-that is, that each street had two be implied that the way must be described in termini-and therefore was not the way as the petition; for, unless a way is described petitioned for, would be sound, if it were in the petition, there is no proposed way to shown that the petition with the termini be described in the notice, and the select named in it called for only one street submen would be without jurisdiction to give stantially in one direction. But that is not notice.

shown, and the presumption now is otherIn this case there was a petition, but it is wise. now lost, and the plaintiff seems to rely upon Finally, the town accepted the road as the inability of the defendant to prove af laid out, namely, from West Front street to firmatively that the petition did describe the | Alder street. This was one way, though it way with sufficient definiteness. But we do consisted of Wo connecting streets, one of not think this difficulty is insurmountable. which was Bridge street, the locus in this ac. The selectmen's return is prima facie evi tion. The only objection, as it seems to us, dence of the fact that they gave notice on is that the acceptance in terms did not inthe petition, and also, we think, of such clude so much of the first street laid out as other facts as were required by law to be lay northerly of Bridge street. Whatever embraced in the notice, such as that the no might be said about this section of the first tice contained a description of the way, and street, we do not think it can now be propwhat it was. Cool v. Crommet, 13 Me. 250; erly held that Bridge street was not acceptInhabitants of Limerick, Petitioners, 18 Me. ed. 183. This return states that the petition was Judgment for the defendant. for a townway “beginning on the north side Hof West Front street and running towards the Kennebec river," that they gave notice of

(102 Me. 346) their intentions to lay out “the same" and BIDDEFORD NAT. BANK v. HILL et al. that they stated in their notice the “termini thereof”; that is, the termini of the way ask

(Supreme Judicial Court of Maine. Jan. 24.

1907.) ed for in the petition, and as asked for. The

1. NOTES VALIDITY - FORGERY FRAUD return, therefore, shows that the selectmen

DECEIT. gave notice of their intentions to lay out a

Where a person not intending to sign a way beginning at West Front street and run promissory note, but by fraud and deceit has ning towards the Kennebec river, and therein

been tricked into signing an instrument which

afterwards proves to be a promissory note, such stated the termini. That must be held to

instrument is a forgery, although the signature be sufficient, so far as notice was concerned. affixed thereto is genuine. Packard v. County Com’rs, 80 Me. 44, 12 [Ed. Note.-For cases in point, see Cent. Dig. Atl. 788; Hayford v. County Com’rs, 78 Me. vol. 7, Bills and Notes, § 235.) 156, 3 Atl. 51. And, while we do not say

2. SAME. that the return should be deemed evidence

A forged paper without negligence imputed

to the party affected by the forgery is not a of the contents of the petition unless incor binding contract, whether the forgery was com. porated therein by reference or otherwise, mitted by alterations or substitution of the forwe think that when it appears by the return

ged contract for the supposed genuine contract. of selectmen that they acted upon a petition

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 7, Bills and Notes, $ 235.] for a way, in a general course, which they

3. SAME - RIGHTS ON INDORSEMENT state, and that they stated in their notice

Bona

FIDE PURCHASERS--FORGERY. "the termini thereof,” meaning, as we have

In the absence of negligence or laches op stated, the termini of the way as asked for, the part of a person not intending to sign a and when the use of the way has been ac

promissory note, but who by fraud and deceit

has been induced to sign an instrument which quiesced in for many years, there is a prima

afterwards proves to be a promissory note. facie presumption at least that the petition such note is not valid although in the hands was sufficient in form to give the selectmen of an innocent holder for value. jurisdiction to act. Harlow v. Pike, 3 Me. [Ed. Note.-For cases in point, see Cent. Dig. 438; Larry v. Lunt, 37 Me. 69. It is not now

vol. 7, Bills and Notes, &$ 234, 952.) open to collateral attack. Higgins v. Hamor,

4. SAME-ACTIONS-QUESTIONS FOR JURY. 88 Me. 25, 33 Atl. 655. This disposes of the

Whether or not a person not intending to

sign a promissory note, but who by fraud and first wo objections.

deceit has been induced to sign an instrument And, if our conclusions so far are sound, which afterwards proves to be a promissory there is little difficulty with the remaining

note, was guilty of negligence or laches in sign

ing such instrument, is a question of fact to be To the objection that the actual lay submitted to the jury. ing out was not justified by the petition, it [Ed. Nute.-For cases in point, see Cent. Dig. is sufficient to say that, for the reasons al vol. 7, Bills and Notes, & 1864.) ready given, it is now to be presumed that (Official.) the laying out was in accordance with the Action by the Biddeford National Bank petition. It is no objection that the way as against Etta 0. Hill and others. Verdict for

66 A.-46

ones.

defendant, and plaintiff moved for a new mitted to the jury as a question of fact, and trial Motion overruled.

their verdict shows that they found this Argued before WHITEHOUSE, STROUT, issue in favor of the defendant. The verdict SAVAGE, PEABODY, and SPEAR, JJ. must stand. We are of opinion that it was Anthony Dwyer, for plaintiff. B. F. Ham

not only not erroneous, but fairly deducible ilton and Cleaves, Waterhouse & Emery, for

from the undisputed facts, defendant Etta 0. Hill.

This brings us to the proposition of law

whether, in the absence of any negligence on SPEAR, J. This is an action of assumpsit

the part of Etta 0. Hill in affixing her sig. upon a promissory note for $344.44, dated nature to the note, she thereby became liable July 5, 1905, purporting to be signed by Etta

for its payment. The bank was undoubtedly 0. Hill and D. O'Connor & Co. The undis

an innocent holder of the note for value, puted facts show that Etta 0. Hill at some

but, in view of the fact that Etta 0. Hill time previous to the date of the note had was fraudulently induced to sign the note sold and delivered to D. O'Connor & Co. a

without laches on her part, makes the note, quantity of pressed hay, the consideration not only her contract, but a forgery with for which amounted to $314.44. Early in the

respect to her signature. morning of the date of the note she called It is contended, however, that the fact that upon O'Connor & Co., meeting D. O'Connor her signature is genuine relieves the note himself, for the purpose of obtaining a settle

from the character of a forged paper, and inment for the hay. When the object of her stead renders it a paper obtained by fraud call was made known to Mr. O'Connor, he

and deceit. informed her that he desired to settle for the But that a paper, obtained like the note in hay by giving her the promissory note of question, partakes of the character of a the company for the amount due. This she forged instrument, has long been the doctrine peremptorily declined, upon the ground that, of the law in this and many other states. being left in entire charge of her father's State v. Shurtliff, 18 Me. 368, decided in farm, it would be necessary for her to make 1841, is a case wherein the grantee agreed use of money at once in harvesting the hay with the grantor to purchase an acre of upon the farm. Thereupon Mr. O'Connor his farm and prepared the draft of a deed wrote her a check for $344.44, the delivery of correctly describing the land agreed to be which she took from him and started to conveyed, and exhibited it to the grantor, leave bis place of business, when he called who examined it and found it to be corlier back, requesting her to sign a receipt for rect, but the execution of it was delayed the mony received for the hay. She returned and the draft was retained by the granto his desk, where a receipt for $314.44, all tee. The grantee afterwards fraudulently written out, was lying for her signature. prepared the draft of another deed, describMr. O'Connor stepped along, placed his finger ing the grantor's whole farm, and presentupon the paper, and directed her where to ed it to the grantor for his signature as sign.' She signed the receipt as requested. the deed before examined, and it was exIt proved, however, that, instead of signing ecuted and delivered, but the court held this the receipt as she supposed she was doing, to be a forgery. In the opinion the court she was deceived and tricked by O'Connor in say: "Forgery has been defined to be a false to affixing her signature either to a blank with making, a making malo animo, of any writthe note in question aterwards written upon ten instrument for the purpose of fraud it, or upon a blank already filled in with and deceit. 2 Russell, 317, and the authorthe contents of the note. It is evident from ities there cited. The evidence fully justifies the history of this transaction that the con the conclusion that the defendant falsely tract manifested by the note in suit was not made and prepared the instrument set forth the contract of the defendant Etta 0. Hill. in the indictment, with the evil design of deThis proposition is too obvious and too well frauding the party whose deed it purports to settled to require citation. If the note was be. It is not necessary that the act should not her contract, was she so negligent in be done in whole or in part by the hand of placing her name upon the paper upon wbich the party charged. It is sufficient if he cause the note appears, when she thought she was or procure it to be done. The instrument was signing a receipt, that she is estopped from false.

• If he had employed any denying her act under the just and well other hand, he would have been responsible settled rule that of two innocent parties he for the act. In truth the signature of that whose negligence has occasioned the loss false instrument, in a merely logical point of must bear it?

view, is as much imputable to him as it No exce

ons wer taken either to the rul he had done it with his own hand, ing of the charge of the presiding justice in and the opinion of the court is that the crime presenting the case to the jury, and it is of forgery has been committed." therefore presumed that every element of It is our opinion that the case at bar falls law in the case was properly given. It there precisely within the statement of facts and fore follows that the question of negligence conclusions of law herein laid down. In the imputable to Etta 0. Hill in signing the note case decided the signature of the grantor purporting to be a receipt was properly sub upon the deed was genuine, and procured by

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