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in section 19 of the Act of 1888, because it is conceded that, if the appeal tax court has not the power to list and classify Annex property for taxation when it measures up to the development required by the act, then no tribunal is clothed with the authority so to do. It would be impossible to impose more than the 60-cent rate upon any Annex property, notwithstanding the fact it may have reached the condition which renders it under the statute subject to the full city rate.

As to the question of notice, it is only necessary to say that it appears to have been given in this case. Section 157 of the Baltimore city charter expressly provides that the appeal tax court may "summons before them any person, whose account of taxable property may, in their judgment require revision and correction and examine such person on oath touching the same." Laws 1898, p. 332, c. 123. While the provision for notice and hearing may not be contained in the act itself, yet a hearing is amply provided by the section of the charter above cited. Fowble v. Kemp, 92 Md. 630, 48 Atl. 379. We therefore hold that the appeal tax court of Baltimore city has ample authority and power to list and classify Annex property, as subject to the full city rate, when the property reaches that condition of development provided by the Acts of 1888 and 1902, and that it has the further power to give the necessary notice and a hearing of the property holders whose property is to be affected thereby. As the view thus taken is decisive of the case, the other questions presented on the record need not be considered by us.

For the reasons given, the decree of the circuit court of Baltimore city will be reversed, and the bill of complaint dismissed. Decree reversed; bill dismissed. with costs.

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DRUNKARDS
STATUTES CONSTRUED.

SENTENCES

So much of V. S. 5206. 5210, requiring imprisonment in the house of correction for nonpayment of fines, as required imprisonment in the house of correction in cases of conviction for being found intoxicated, is repealed by Acts 1906, p. 210, No. 200, § 8. providing that all imprisonment for such offense shall be in the county jail.

In the matter of the application of Henry A. Bowers for habeas corpus to be discharged from imprisonment. Judgment of lawful imprisonment, and complainant remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

Harvey & Harvey for relator. Clarke C. Fitts, Atty. Gen., and Benj. Gates, State's Atty., for the State.

ROWELL, C. J. The complainant seeks by habeas corpus to be discharged from fur

ther serving an alternative sentence in Washington county jail, taking effect at the expiration of a term of imprisonment therein, for the nonpayment of a fine, with costs, imposed on a second conviction for being found intoxicated.

He relies upon V. S. 5206. But that section applies only to cases in which a fine is imposed and no other sentence is passed, in which case, if the fine is not paid in 24 hours, it requires imprisonment in the house of correction. But that section and V. S. 5210, taken together, cover the case, if those sections are still in force as to this class of cases. Section 5210 provides that when a person over a certain age is convicted of an offense punishable by fine or imprisonment, or both, and is sentenced to both, the sentence as to the fine shall be the same alternative sentence as where a fine only is imposed, and shall take effect at the expiration of the term of imprisonment. But said sections are not in force as to this class of cases, for section 8, No. 200, p. 210, Acts of 1906, provides that all imprisonments for being found intoxicated shall be in the county jail of the county in which the offense is committed. This is inconsistent with said sections, and, as the act of 1906 repeals all acts and parts of acts inconsistent therewith, so much of said sections as required imprisonment in the house of correction in this class of cases is thereby repealed, and now all imprisonments for being found intoxicated must be, as the statute says, in the county jail of the county in which the offense was committed.

This is not like Sammon's Case, decided at the last term, and found in 65 Atl. 577. There the complainant was in the county jail for assault and battery, under a sentence of imprisonment and an alternative sentence for the nonpayment of a fine. It was held that section 8, No. 200, p. 210, of the Acts of 1906, as far as it relates to breaches of the peace, has reference only to imprisonment by direct sentence, and not to imprisonment by an alternative sentence, and consequently that said section is not in conflict with the sections of the Vermont Statutes referred to, and that they are not, in the respects there involved, repealed by said act.

Judgment that the complainant is lawfully imprisoned, and that he be remanded to the custody whence he was taken.

(80 Vt. 144)

COLLINS. v. FARLEY. (Supreme Court of Vermont. Chittenden. May 18, 1907.)

JUSTICES OF the Peace-Default JUDGMENTS -SETTING ASIDE-PETITION-SUFFICIENCY. A petition to the county court to set aside a default judgment rendered by a justice of the peace, in an action by F. to recover what he paid to satisfy a judgment recovered against him by a third person, for attaching and selling his property, on an execution in favor of petitioner against another, which alleges that petitioner

"claims, and always claimed, that, prior to the sale of said property by said F., he expressly notified said F. that he would not indemnify him against loss by reason of the sale of said property, but that, if he sold it, he must do so at his own risk," sufficiently alleges that the petitioner gave the notice to F., and therefore the petition verified by the petitioner is sufficient as an affidavit of defense on the merits.

Exceptions from Chittenden County Court. Petition under V. S. 1667 et seq., by Albert C. Collins against Joseph W. Farley, to set aside a default judgment rendered by a justice of the peace. There was a judgment for petitioner, and petitionee brings exceptions. Affirmed.

Argued before TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ. J. J. Enright and R. E. Braum, for petitioner. Cowles & Moulton and C. S. Palmer, for petitionee.

ROWELL, C. J. This is a petition to the county court to reverse and set aside the judgment of a justice rendered upon default against the petitioner, as he was unjustly deprived of his day in court by fraud, accident, or mistake, and to hear and determine the action as if it had been brought to said court by appeal. Said action was brought by the petitionee to recover what he paid to satisfy a judgment recovered against him by one Stiles for attaching and selling his property on a writ and an execution in favor of the petitioner against one Murphy. The court found the mistake relied upon on trial, and that "the petitioner claimed before it that he had a good and sufficient defense to said action, for the reason that he expressly notified said Farley that he would not indemnify him against loss by reason of the sale of said property, and that if he proceeded to sell it he must do so at his own risk." Thereupon the prayer of the petition was granted, and judgment accordingly. The petitionee excepted to the judgment generally, and also specially upon the ground that there was no evidence to support it. The only question the petitionee seeks to raise is whether the court could grant the petition without an affidavit, or some other evidence, of a good defense upon the merits of the original action, claiming that that was necessary in order to bring the case within the purview of the statute, as it undoubtedly was, as is abundantly shown by the cases cited in the petitionee's brief. On this point the petitionee seeks to question the sufficiency of the petition, both as a pleading and as an affidavit of merits. The petitioner objects that the exceptions do not reach back to the petition in either respect. But we think that the special exception does reach back to it as an affidavit of merits, and we will treat it as reaching back to it as a pleading, without deciding whether it does or not.

It is manifest that the case must stand upon the petition alone for merits, as there was no other evidence before the court tend

ing to show merits. The only allegation of merits that the petition contains is, that "the petitioner claims, and always claimed, that, prior to the sale of said property by said Farley, he expressly notified said Farley that he would not indemnify him against loss by reason of the sale of said property, but that, if he sold it, he must do it at his own risk." The petitionee says that this is not an allegation that such notice was given, but only an allegation of a claim that it was given, without saying that it was given; that a mere claim that it was given is not enough; and that the fact claimed cannot be considered, because, not being alleged, it is not sworn to. But, in sessions proceedings, the strict rules of the common law for the construction of pleadings are not applied; but, on the contrary, the pleadings are construed liberally, with a view to substantial justice, and to getting at the real truth of the case when it will not surprise nor harm the other party. Under this rule, if a pleading is capable of two meanings, one of which will defeat it, and the other sustain it, this will be taken, and not that. Even at the common law, if the language of a pleading is capable of different meanings, it is permissible to construe it in the sense in which the pleader must be understood to have used it, supposing him to have intended his pleading to be consistent with itself. Royce v. Maloney, 58 Vt. 437, 445, 5 Atl. 395. Now, one meaning of the verb "claim" is, to assert; to maintain; to hold or maintain as a fact or as true. Giving this meaning to the word as used in the petition, as we should under the rule stated, the allegation means that the petitioner asserts as a fact, and maintains as true, that he gave the notice therein claimed. This makes the petition good as a pleading and as an affidavit of defense, and sufficient to bring the case within the purview of the statute, and to sustain the judgment, as it is verified by the oath of the petitioner, who has personal knowledge of the fact of notice. Judgment affirmed.

(102 Me. 323) SKOWHEGAN WATER CO. v. SKOWHEGAN VILLAGE CORP. (Supreme Judicial Court of Maine. December 18, 1906.)

1. CONTRACTS-SUBSTANTIAL PERFORMANCE— EQUITABLE RELIEF.

By the strict rules of the common law in cases where services have been rendered or materials furnished in an honest endeavor to perform a contract, but are found to be at variance with the requirements of its express terms, and yet in some degree beneficial to the party to whom the services have been rendered or for whom the materials have been furnished, full performance was undoubtedly required as a condition precedent to the right of recovery. But in most jurisdictions the rigor of this commonlaw rule has been relaxed, even in courts of law, especially in building contracts and other like agreements, where the defendant is practically forced to accept the result of the work and re

lief is granted to the plaintiff by applying the equitable doctrine of substantial performance. [Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1365–1368.]

2. SAME.

Although a plaintiff cannot recover upon a 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 the plaintiff has done. If a plaintiff endeavors in good faith to perform, and does substantially perform, an agreement, 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

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In some of the decided cases, reference is made to the "deduction," "recoupment," or "setoff" 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 a 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 contract be such as to subject the defendant to consequential damage, such damage may be the foundation for a legitimate claim in recoupment, and the burden of proving such damage would be upon the defendant.

4. SAME-CONSTRUCTION-GENERAL

INTENT.

RULES

Whether a given stipulation is to be deemed a condition precedent, a condition subsequent 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.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 1015.]

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5. WATERS AND WATER COURSES PUBLIC WATER SUPPLY - PERFORMANCE OF CONTRACT.

In view of the peculiarities which necessarily characterize the sale and delivery of water through a system of water pipes under a contract where a water company has agreed to furnish for a term of years, through its hydrants, to a municipal corporation, a constant and ample supply of potable water, under sufficient pressure for the extinguishment of fires, unavoidable accidents excepted, it is manifest that the mere receipt and consumption of water under such contract would not conclusively show an acceptance of the service as a performance of the contract. Considerable time might be required to determine whether or not an 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.

6. DAMAGES-MEASURE-BREACH OF CONTRACT.

In the case at bar the plaintiff took exceptions to certain instructions given by the presiding justice and which are stated in the opinion. Held, that these instructions, as a whole, as applied to the facts in this case, were substantially correct, and not prejudicial to the plaintiff.

(Official.).

Exceptions from Supreme Judicial Court, Somerset County.

Action by the Skowhegan Water Company against the Skowhegan Village Corporation. Heard on exceptions by the plaintiff. Overruled.

Assumpsit to recover $1,037.50, being the semiannual installment of $1,000 alleged to be due the plaintiff, under paragraph 8, and $37.50 for six months' use of five additional hydrants, under paragraph 5, of a written contract between the parties.

Tried at the March term, 1906, of the Supreme Judicial Court, Somerset county. Verdict for plaintiff for $519.64. The plaintiff requested the presiding justice to give a certain instruction to the jury, which request was refused, and thereupon the plaintiff took exceptions. The plaintiff also took exceptions to certain instructions given by the presiding justice.

The case appears in the opinion.

Memorandum: One of the justices sitting at the term of the law court at which this case was argued did not sit in this case, being disqualified under the statute by reason of having ruled therein at nisi prius.

Argued before WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

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

WHITEHOUSE, J. This is an action of assumpsit to recover $1,037.50, being the semiannual installment of $1,000 alleged to be due the plaintiff under paragraph 8, and $37.50 for six months' use of five additional hydrants, under paragraph 5, of the written contract between the parties.

The declaration in the writ contains two counts, one setting out the contract and atleging performance on the part of the plaintiff and a breach on the part of the defendant, and the other on an account annexed specifying the two items of $1,000 and $37.50 above mentioned, and making reference to the contract.

The first and eighth paragraphs of this contract are as follows:

"First. The said company hereby agree to maintain within the limits of said corporation, and for the use of said corporation, for fire purposes, seventy-five hydrants, as now located or as hereafter relocated by said corporation, under the provisions of section four of this indenture, and to keep and maintain said hydrants in good repair at all times during said term of twenty years. And during said term said company agrees to furnish at all times, through said hydrants, and through all additional hydrants which may hereafter be put in under the provisions of section five of this indenture, a constant and ample supply of potable water, under sufficient pressure for the extinguishment of fires, unavoidable accidents excepted."

"Eighth. And in consideration of the above

promises and agreements of said company, the said corporation hereby agrees to pay to said company, for the use of the water for the purposes aforesaid, and in the manner and on the conditions aforesaid, the sum of two thousand dollars ($2,000) per annum for the said period of twenty years, said sum to be paid in equal semiannual payments as follows, viz.: One thousand dollars ($1,000) on the first day of July, and one thousand dollars ($1,000) on the first day of January of each and every year during said period of twenty years. The first payment under this agreement to become due and payable on the first day of January, A. D. 1890, and the amount then due to be estimated pro rata from said nineteenth day of August, A. D. 1889, to said first day of January 1890, and thereafter as above."

The plaintiff introduced evidence tending to show a compliance on its part, in general, with the covenants and conditions of the contract, proved nonpayment of the sums sued for, and rested.

The defendant introduced evidence tending to show that during the six months prior to July 1, 1905, the water furnished by the plaintiff through its pipes and hydrants for the use of the defendant was not under sufficient pressure for the extinguishment of fires, several of which occurred during that period; also that it was not potable. The plaintiff in rebuttal offered evidence tending to show that the pressure was sufficient at all times, except when unavoidable accident prevented, and that the water was potable.

There was no evidence of any damage to the defendant corporation from any breach of contract on the part of the plaintiff, except as may be inferred from the foregoing.

It was insisted by the plaintiff's counsel at the trial that evidence tending to show insufficiency of water pressure and impurity of the water was important only as a basis for recouping damages, and that such damages only could be recouped as might have been suffered by the defendant as a corporation.

The defendant's counsel, on the other hand, claimed that it was not limited to proof of damages in set-off, but that it was incumbent upon the plaintiff to satisfy the jury that during the six months prior to July 1, 1905, it had furnished the defendant a constant and ample supply of potable water under sufficient pressure for the extinguishment of fires; that, unless it had so done, it could recover only such a sum as the service was reasonably worth to the corporation.

Among other requests the plaintiff asked that the following instructions be given to the jury:

"It is not a condition precedent to recovery that the plaintiff should have furnished a constant and ample supply of potable water under sufficient pressure for the extinguishment of fires, but insufficiency of pressure can be taken advantage of by the defendant

for the purpose of recouping in damages." The presiding judge declined to give this instruction, and upon this branch of the case instructed the jury, inter alia, as follows:

"Has the plaintiff performed its contract in this particular during that term? If it has, and if it has supplied potable water, under sufficient pressure, then it is entitled to its contract price. If it has not, then we come to another and very important question. The defendant does not seek, in this case, to recover damages of the plaintiff. The defendant does not seek to have its damages sustained by it through the plaintiff's breach of contract set off, or recouped, as we sometimes say, against the plaintiff's claim. If it did, in order to establish any defense at all, it would be necessary to show that the defendant corporation itself had been damaged-had property injured-by reason of the loss of pressure. The losses which individuals in the corporation-that is, the citizens, individuals in the town, may have sustained-are not to be considered. They are not parties to this suit. This is merely a suit between these two parties, both corporations, upon this contract; and, in order to have any damages allowed or recouped, it would be necessary to show that the corporation, as a corporation, has been injured in its property by the want of pressure which the contract called for. But this is not the defendant's position. The position between these two parties is simply this: The plaintiff sues for the price of an agreed service, and says that it has kept its agreement, and furnished the service called for. The defendant says it has not furnished the service, and therefore is not entitled to the pay. The question of damages does not come in at all. It is merely a question whether the plaintiff has so far performed its service as to be entitled to its pay. And, if it had not performed its service, it is not entitled to its pay, at least in full.

* *

"The general rule is that where a man has agreed to do a service for another, to a certain extent, or in a particular way, and fails to do that service to the extent he agreed to, or does it in a different way, the plaintiff with whom he contracts may do one of two things. He may refuse to accept the service, and say 'Here, this isn't what I ordered, this isn't what I agreed to pay for, and I wont take it,' or he may take it, and say "This isn't what I agreed to pay for;' but impliedly, by taking it, he agrees to pay what the service is worth. So, to use an illustration somewhat like that used by counsel, supposing a carpenter agrees to build your house upon your land, or to repair it, and agrees to do it in a particular way, but he doesn't do it right-he leaves some rooms unfinished for instance, or puts in different material, cheaper material than he agreed to put in, or does it in some way that is contrary to the contract. The house is upon your land, and you can't very well tear that

house down or refuse to accept it. Practically the man is obliged to accept it, not absolutely obliged to, but practically, and he may take it; but he may say 'I shall not pay you the full contract price, because you have not done what you agreed to do.' In such a case as that, if he takes the work and accepts and uses it, not accepts it as an equivalent of the contract, but accepts it as his own for use, the party performing the work is not debarred from all compensation because he has failed to keep his contract, but he can only recover what the services are reasonably worth.

"Now, I apply that same rule in this case. If the plaintiff agreed to perform the agreed service, either as to quality of water or as to sufficiency of pressure, and the service was accepted, as it practically had to be, not absolutely, because the corporation might have terminated the contract if they saw fit-that is, if they had a reason for doing it—but if they allowed it to go on and the water stood here for their use, so they could use it, and did use it, the plaintiff would not be debarred entirely from recovering merely because the contract had not been fully kept, but would be entitled to recover what the services actually rendered were reasonably worth.

"There are a great many things, especially in a public service like a water service, that enter into the value of that service. It is not merely the number of houses that may burn, or may not burn. That isn't it. But here is a village which the municipal corporation has a right to protect, and was trying to protect by its contract. On the other hand, here was the company which necessarily had to lay out large sums of money in order to be able to furnish the service. That was its investment. The value of the service to the purchaser, of course, does not depend upon the cost of it-the amount of the investment-however, but upon the situation, the length of the pipes, as far as we know anything about them, the size of the village, so far as we know anything about it. All have some bearing as showing what that service which was actually rendered should have been worth. 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.

"In estimating the value of the service to the corporation, as I have already said, you

are not to estimate how much less value the service was to the individual water takers by reason of the water not being drinkable, if that was the case. 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, and not because it was not worth so much to individuals. It is merely and purely a contract between the two corporations, and I cannot too often, perhaps, or too emphatically, say that the loss to individuals-the embarrassment to individuals-is not to be weighed."

Verdict was for plaintiff in sum of $519.64, and the case comes to this court on exceptions to the refusal of the presiding judge to give the requested instruction and to the instructions actually given to the jury.

It is contended in argument in behalf of the plaintiff that the exceptions should be sustained for the following reasons: (1) Because the contract is not properly apportionable, and performance of six months' serv ice is not to be held a condition precedent to recovery of a semiannual installment; (2) because, if the first contention be overruled, the condition precedent loses its character as such by acceptance of the service and retention of the benefits; (3) because breach of one portion of a severable contract can be taken advantage of only by recouping in damages; (4) because the rule of damages was uncertain and incorrect.

It is the opinion of the court, however, that upon the facts disclosed by the record in this case these contentions in behalf of the plaintiff cannot be sustained. The rulings and instructions of the presiding judge in regard to the plaintiff's right to recover in case of partial performance were sufficiently favorable to the plaintiff and substantially in accord with the equitable doctrine that has heretofore prevailed in this state in analogous cases. The decisions in other states undoubtedly disclose many different forms of expressions, if not a variety of opinions, in relation to the proper rule to be applied in adjusting the rights of parties where services have been rendered or materials furnished in an honest endeavor to perform a contract, but are found to be at variance with the requirements of its express terms, and yet in some degree beneficial to the other party. By the strict rules of the common law in such a case full performance was undoubtedly required as a condition precedent to the right of recovery, but in most jurisdictions the rigor of this common-law rule has been relaxed, even in courts of law, especially in building contracts and other like agreements, where the defendant is practically forced to accept the result of the work and relief is granted to the plaintiff by applying the equitable doctrine of substantial performance.

Thus in the early case in this state of Norris v. School District, 12 Me, 296, 28 Am,

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