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 derived 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," "recoupment," 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 defendant 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 which 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 ap portionable, 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 services rendered to the city over and above all 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 provisions, 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 assume 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 acceptance 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

discontinuance of the use of the water unreasonable and impracticable.

Finally, the plaintiff complains that the rule of damages given "allowed the jury to disregard the contract altogether, and afforded no tangible basis for fixing the value of the services rendered." Upon this point, as has been noted, the final instruction was as follows:

"The contract was for $1,037.50 for every six months. That isn't controlling. It may be considered by you. There may have been elements of profit in the contract. It may have been advantageous to the plaintiff, or it may have been advantageous to the defendant. And whatever advantages they would get out of their contract, of course, they are entitled to. The plaintiff here is entitled not to its contract price, or to any advantage which it might have by its contract, but is entitled to the reasonable worth of the service to the purchaser.

"So far as the potable water problem is concerned, as bearing upon the question, the rule applies to that feature also. You are simply to answer how much less the service was worth to the corporation for corporation purposes, by reason of any impurity in the water."

This, considered in connection with other parts of the charge, gave the jury to understand that in adopting a statement of value for the assessment of damages the parties were to be considered as entitled to any advantages they would have derived from the contract as far as the element of profit was concerned; but in case of partial performance the plaintiff was not entitled to the contract price, nor to any advantage from the contract in the maintenance of the suit, but it was entitled to recover the fair value of the service, having regard to the contract price and "considering how much less the service was worth to the corporation" by reason of the plaintiff's breach of the contract.

It is the opinion of the court that the instructions as a whole, as applied to the facts in this case, were substantially correct, and not prejudicial to the plaintiff.

Exceptions overruled.

A petition for a way is necessary to give selectmen jurisdiction to lay out a townway under the statute.

4. SAME PRESUMPTIONS COLLATERAL TACK.

AT

In a case where the original petition is not in existence, and the return of the selectmen states that it was for a townway, "beginning on the north side of West Front street, and running towards the Kennebec river," that they gave notice of their intention to lay out "the same," and that they stated in their notice the "termini thereof," and when it appears that the use of the way has been acquiesced in many years, it is held that there is a prima facie presumption, at least, that the petition was sufficient in form to give the selectmen jurisdiction to act, and it is not open to collateral attack.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 168.]

5. SAME.

In such a case it is also to be presumed that the laying out was in accordance with the petition.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, §§ 168-172.] 6. SAME.

In such a case it is no objection that the way as laid out consisted of two streets running at an angle with each other, which were described separately in the return, but connecting and forming one way; it not being shown that the petition with the termini named in it called for only one street substantially in one direction. The presumption as to the petition is otherwise.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 168-172.] 7. SAME.

The acceptance by the town of a "road" as laid out by the selectmen from "West Front street to Alder street" was sufficient, though it appears that the road consisted of two connecting streets, running at an angle with each other.

(Official.)

Agreed Statement from Supreme Judicial Court, Somerset County.

Action by Walter S. Cushing against George H. Webb. Heard on an agreed statement of facts. Judgment for defendant.

Action of trespass quare clausum fregit for breaking and entering the plaintiff's close; the same being a lot on the south side of the Kennebec river, in the village of Skowhegan. The defendant was the duly qualified road commissioner for the town of Skowhegan on the day of the entry. He admitted the entry, but claimed a justification by rea son of the fact that the locus was within the limits of Bridge street which he claimed was a duly located townway in Skowhegan. The existence of such a way was denied by the

not Bridge street was ever legally laid out as a townway, and so accepted by the town.

At the March term, 1906, of the Supreme Judicial Court, Somerset county, an agreed

statement of facts was filed, and the case sent to the law court for determination with the agreement that, if the entry by the defendant was without authority of law, judgment should be rendered for the plaintiff for nominal damages; otherwise judgment to be for the defendant.

All the material facts are stated in the opinion.

Argued before WISWELL, C. J., and EMERY, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Gould & Lawrence, for plaintiff. Butler & Butler, for defendant.

SAVAGE, J. Trespass quare clausum. The 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 Skowhegan. 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 accepted 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 Skowhegan 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, upon application of James B. Dascomb and others to lay out a townway in said town, beginning on the north side of West Front street and running towards the Kennebec river, having given seven days' notice of our intentions to lay out the same and stated in said notice the termini thereof by posting said notice in two public places. * 串串

"We therefore lay out said way as follows: Beginning in the northerly side of West Front street at the southerly corner of George W. Durrell's lot and 20 feet easterly from said corner; thence north 15 degrees west 12 rods; thence north 19 degrees west 41 rods; all of said distances are over the land of John Turner.

"Said line is the center line and said street is to be forty feet wide.

"Also another street leading easterly from the above street. Beginning at the southwesterly corner of the Morrill lot and one and one half rods southerly from said corner, thence north fifty seven degrees east 15 rods over land of John Turner to line between said Turner and land belonging to the Parker estate to Alder Street; said line is the center line and said street is to be three rods wide. * * "This return was signed by the selectmen, and was dated February 15, 1886. The road laid out in the second of the above description is Bridge street, and is the locus of the entry complained of.

The warrant for the annual meeting of

1886 contained the following article:

"To see if the town will vote to accept the following roads as laid out by the selectmen. First, a road from West Front street to Alder street."

Under that article the following vote was passed:

"Voted to accept the road as laid out by the selectmen, a road from West Front street to Alder street."

It is admitted that the original petition asking for the laying out of the road from West Front street towards the Kennebec river is not now in existence, having been lost or destroyed.

A reference to the accompanying sketch will show the situation more plainly.

The statute (Rev. St. 1883, c. 18, § 14) under which the selectmen acted is as follows: "The municipal officers of a town may personally or by agency lay out, alter or widen town ways and private ways,

on petition therefor. They shall give written notice of their intentions to be posted for seven days, in two public places in the town and in the vicinity of the way, describing it in such notice. *

The plaintiff claims that the record is insufficient to show a legal laying out in four particulars: First, that the petition was insufficient for lack of definiteness to confer jurisdiction on the selectmen; again, that the notice given by the selectmen was insufficient because it failed to warn property holders of any specific way which would be ascertained with any reasonable certainty; then that the actual laying out was not justified by the petition; and, finally, that the road was never accepted by the town.

It is evident that a petition for a way is necessary to give selectmen jurisdiction to lay out a way under the statute. And we think, also, that such a petition must be so definite that, when notice of it is given, the public and property owners will be apprised with reasonable certainty where the way is sought to be located. While the statute does not in terms require the petition to describe the way, as it does in cases of petitions to

the county commissioners for the laying out of highways (Rev. St. 1903, c. 23, § 1), it does require the selectmen to describe the way in their notice. And, as their jurisdiction is based upon the petition, it is reasonably to be implied that the way must be described in the petition; for, unless a way is described in the petition, there is no proposed way to be described in the notice, and the selectmen would be without jurisdiction to give notice.

In this case there was a petition, but it is now lost, and the plaintiff seems to rely upon the inability of the defendant to prove affirmatively that the petition did describe the way with sufficient definiteness. But we do not think this difficulty is insurmountable. The selectmen's return is prima facie evidence of the fact that they gave notice on the petition, and also, we think, of such other facts as were required by law to be embraced in the notice, such as that the notice contained a description of the way, and what it was. Cool v. Crommet, 13 Me. 250; Inhabitants of Limerick, Petitioners, 18 Me. 183. This return states that the petition was for a townway "beginning on the north side of West Front street and running towards the Kennebec river," that they gave notice of their intentions to lay out "the same" and that they stated in their notice the "termini thereof"; that is, the termini of the way asked for in the petition, and as asked for. The return, therefore, shows that the selectmen gave notice of their intentions to lay out a way beginning at West Front street and running towards the Kennebec river, and therein stated the termini. That must be held to be sufficient, so far as notice was concerned. Packard v. County Com'rs, 80 Me. 44, 12 Atl. 788; Hayford v. County Com'rs, 78 Me. 156, 3 Atl. 51. And, while we do not say that the return should be deemed evidence of the contents of the petition unless incorporated therein by reference or otherwise, we think that when it appears by the return of selectmen that they acted upon a petition for a way, in a general course, which they state, and that they stated in their notice "the termini thereof," meaning, as we have stated, the termini of the way as asked for, and when the use of the way has been acquiesced in for many years, there is a prima facie presumption at least that the petition was sufficient in form to give the selectmen jurisdiction to act. Harlow v. Pike, 3 Me. 438; Larry v. Lunt, 37 Me. 69. It is not now open to collateral attack. Higgins v. Hamor, 88 Me. 25, 33 Atl. 655. This disposes of the first two objections.

And, if our conclusions so far are sound, there is little difficulty with the remaining ones. To the objection that the actual laying out was not justified by the petition, it is sufficient to say that, for the reasons already given, it is now to be presumed that the laying out was in accordance with the petition. It is no objection that the way as 66 A.-46

laid out consists of two streets, which are described separately in the return. They connect and form one way. The argument that the way as laid out had more than two termini-that is, that each street had two termini-and therefore was not the way as petitioned for, would be sound, if it were shown that the petition with the termini named in it called for only one street substantially in one direction. But that is not shown, and the presumption now is otherwise.

Finally, the town accepted the road as laid out, namely, from West Front street to Alder street. This was one way, though it consisted of two connecting streets, one of which was Bridge street, the locus in this action. The only objection, as it seems to us, is that the acceptance in terms did not include so much of the first street laid out as lay northerly of Bridge street. Whatever might be said about this section of the first street, we do not think it can now be properly held that Bridge street was not accepted.

Judgment for the defendant.

Where a person not intending to sign a promissory note, but by fraud and deceit has been tricked into signing an instrument which afterwards proves to be a promissory note, such instrument is a forgery, although the signature affixed thereto is genuine.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 235.] 2. SAME.

A forged paper without negligence imputed to the party affected by the forgery is not a binding contract, whether the forgery was committed by alterations or substitution of the forged contract for the supposed genuine contract. [Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 235.]

3. SAME RIGHTS ON INDORSEMENT - BONA FIDE PURCHASERS--FORGERY.

In the absence of negligence or laches on the part of a person not intending to sign a promissory note, but who by fraud and deceit has been induced to sign an instrument which afterwards proves to be a promissory note. such note is not valid although in the hands of an innocent holder for value.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 234, 952.]

4. SAME-ACTIONS-QUESTIONS FOR JURY.

Whether or not a person not intending to sign a promissory note, but who by fraud and deceit has been induced to sign an instrument which afterwards proves to be a promissory note, was guilty of negligence or laches in signing such instrument, is a question of fact to be submitted to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 1864.] (Official.)

Action by the Biddeford National Bank against Etta O. Hill and others. Verdict for

defendant, and plaintiff moved for a new trial. Motion overruled.

Argued before WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Anthony Dwyer, for plaintiff. B. F. Hamilton and Cleaves, Waterhouse & Emery, for defendant Etta O. Hill.

SPEAR, J. This is an action of assumpsit upon a promissory note for $344.44, dated July 5, 1905, purporting to be signed by Etta O. Hill and D. O'Connor & Co. The undisputed facts show that Etta O. Hill at some time previous to the date of the note had sold and delivered to D. O'Connor & Co. a quantity of pressed hay, the consideration for which amounted to $344.44. Early in the morning of the date of the note she called upon O'Connor & Co., meeting D. O'Connor himself, for the purpose of obtaining a settlement for the hay. When the object of her call was made known to Mr. O'Connor, he informed her that he desired to settle for the hay by giving her the promissory note of the company for the amount due. This she peremptorily declined, upon the ground that, being left in entire charge of her father's farm, it would be necessary for her to make use of money at once in harvesting the hay upon the farm. Thereupon Mr. O'Connor wrote her a check for $344.44, the delivery of which she took from him and started to leave his place of business, when he called her back, requesting her to sign a receipt for the mony received for the hay. She returned to his desk, where a receipt for $344.44, all written out, was lying for her signature. Mr. O'Connor stepped along, placed his finger upon the paper, and directed her where to sign. She signed the receipt as requested. It proved, however, that, instead of signing the receipt as she supposed she was doing, she was deceived and tricked by O'Connor into affixing her signature either to a blank with the note in question aterwards written upon it, or upon a blank already filled in with the contents of the note. It is evident from the history of this transaction that the contract manifested by the note in suit was not the contract of the defendant Etta O. Hill. This proposition is too obvious and too well settled to require citation. If the note was not her contract, was she so negligent in placing her name upon the paper upon which the note appears, when she thought she was signing a receipt, that she is estopped from denying her act under the just and wellsettled rule that of two innocent parties he whose negligence has occasioned the loss must bear it?

No exceptions were taken either to the ruling of the charge of the presiding justice in presenting the case to the jury, and it is therefore presumed that every element of law in the case was properly given. It therefore follows that the question of negligence imputable to Etta O. Hill in signing the note purporting to be a receipt was properly sub

mitted to the jury as a question of fact, and their verdict shows that they found this issue in favor of the defendant. The verdict must stand. We are of opinion that it was not only not erroneous, but fairly deducible from the undisputed facts.

This brings us to the proposition of law whether, in the absence of any negligence on the part of Etta O. Hill in affixing her signature to the note, she thereby became liable for its payment. The bank was undoubtedly an innocent holder of the note for value, but, in view of the fact that Etta O. Hill was fraudulently induced to sign the note without laches on her part, makes the note, not only her contract, but a forgery with respect to her signature.

It is contended, however, that the fact that her signature is genuine relieves the note from the character of a forged paper, and instead renders it a paper obtained by fraud and deceit.

But that a paper, obtained like the note in question, partakes of the character of a forged instrument, has long been the doctrine of the law in this and many other states.

State v. Shurtliff, 18 Me. 368, decided in 1841, is a case wherein the grantee agreed with the grantor to purchase an acre of his farm and prepared the draft of a deed correctly describing the land agreed to be conveyed, and exhibited it to the grantor, who examined it and found it to be correct, but the execution of it was delayed and the draft was retained by the grantee. The grantee afterwards fraudulently prepared the draft of another deed, describing the grantor's whole farm, and presented it to the grantor for his signature as the deed before examined, and it was executed and delivered, but the court held this to be a forgery. In the opinion the court say: "Forgery has been defined to be a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit. 2 Russell, 317, and the authorities there cited. The evidence fully justifies the conclusion that the defendant falsely made and prepared the instrument set forth in the indictment, with the evil design of defrauding the party whose deed it purports to be. It is not necessary that the act should be done in whole or in part by the hand of the party charged. It is sufficient if he cause or procure it to be done. The instrument was false. If he had employed any other hand, he would have been responsible for the act. In truth the signature of that false instrument, in a merely logical point of view, is as much imputable to him as if he had done it with his own hand, and the opinion of the court is that the crime of forgery has been committed."

*

It is our opinion that the case at bar falls precisely within the statement of facts and conclusions of law herein laid down. In the case decided the signature of the grantor upon the deed was genuine, and procured by