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in section 19 of the Act of 1388, 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 tl at 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.

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. 8. 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 hable 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 whenee he was taken.

(80 Vt. 175)

Ex parte BOWERS. (Supreme Court of Vermont. General Term.

May 22, 1907.)
DRUNKARDS PROSECUTION SENTENCES
STATUTES CONSTRUED.

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 discharg. ed from imprisonment. Judgment of lawful imprisonment, and complainant remanded.

Argued before ROWELL, C. J., and TY. LER, 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.

(80 Vt. 144) COLLINS. v. FARLEY. (Supreme Court of Vermont. Chittenden, May

18, 19907.) 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

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

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"claims, and always claimed, that, prior to the ing to show merits. The only allegation of
sale of said property by said F., he expressly
notified said F. that he would not indemnify

merits that the petition contains is, that "the him against loss by reason of the sale of said

petitioner claims, and always claimed, that, property, but that, if he sold it, he must do so prior to the sale of said property by said at his own risk,” sufficiently alleges that the peti Farley, he expressly notified said Farley that tioner gave the notice to F., and therefore the petition verified by the petitioner is sufficient

he would not indemnify him against loss by as an affidavit of defense on the merits.

reason of the sale of said property, but that,

if he sold it, he must do it at his own risk.” Exceptions from Chittenden County Court.

The petitionee says that this is not an alle Petition under V. S. 1667 et seq., by Albert

gation that such notice was given, but only C. Collins against Joseph W. Farley, to set

an allegation of a claim that it was given, aside a default judgment rendered by a jus

without saying that it was given; that a tice of the peace. There was a judgment for

mere claim that it was given is not enough; petitioner, and petitionee brings exceptions.

and that the fact claimed cannot be considAffirmed.

ered, because, not being alleged, it is not Argued before TYLER, MUNSON, WAT

sworn to. But, in sessions proceedings, the SON, HASELTON, POWERS, and MILES, JJ.

strict rules of the common law for the conJ. J. Enright and R. E. Braum, for peti struction of pleadings are not applied; but, tioner. Cowles & Moulton and C. S. Palmer, in the contrary, the pleadings are construed for petitionee.

liberally, with a view to substantial justice,

and to getting at the real truth of the case ROWELL, C. J. This is a petition to the when it will not surprise nor harm the other county court to reverse and set aside the party. Under this rule, if a pleading is capjudgment of a justice rendered upon default able of two meanings, one of which will deagainst the petitioner, as he was unjustly feat it, and the other sustain it, this will be deprived of his day in court by fraud, acci taken, and not that. Even at the common dent, or mistake, and to hear and determine law, if the language of a pleading is capable the action as if it had been brought to said of different meanings, it is permissible to court by appeal. Said action was brought by construe it in the sense in which the pleader the petitionee to recover what he paid to must be understood to have used it, suppossatisfy a judgment recovered against him by ing him to have intended his pleading to be one Stiles for attaching and selling his prop consistent with itself. Royce v. Maloney, 58 erty on a writ and an execution in favor of Vt. 437, 445, 5 Atl. 395. Now, one meaning the petitioner against one Murphy. The court of the verb "claim" is, to assert; to mainfound the mistake relied upon on trial, and tain; to hold or maintain as a fact or as true. that "the petitioner claimed before it that Giving this meaning to the word as used in he had a good and sufficient defense to said the petition, as we should under the rule action, for the reason that he expressly noti stated, the allegation means that the petitionfied said Farley that he would not indemnify er asserts as a fact, and maintains as true, him against loss by reason of the sale of that he gave the notice therein claimed. This said property, and that if he proceeded to makes the petition good as a pleading and as sell it he must do so at his own risk.” There

an affidavit of defense, and sufficient to bring upon the prayer of the petition was granted, the case within the purview of the statute, and judgment accordingly. The petitionee and to sustain the judgment, as it is verified excepted to the judgment generally, and also by the oath of the petitioner, who has perspecially upon the ground that there was no

sonal knowledge of the fact of notice. evidence to support it. The only question the Judgment affirmed. petitionee seeks to raise is whether the court 'could grant the petition without an affidavit, or some other evidence, of a good defense

(102 Me. 323) upon the merits of the original action, claim SKOWHEGAN WATER CO. V. SKOWHEGing that that was necessary in order to bring

AN VILLAGE CORP. the case within the purview of the statute,

(Supreme Judicial Court of Maine. December as it undoubtedly was, as is abundantly

18, 1906.) shown by the cases cited in the petitionee's

1. CONTRACTS-SUBSTANTIAL PERFORMANCE brief. On this point the petitionee seeks to

· EQUITABLE RELIEF. question the sufficiency of the petition, both By the strict rules of the common law in as a pleading and as an affidavit of merits.

cases where services have been rendered or ma

terials furnished in an honest endeavor to perThe petitioner objects that the exceptions do

form a contract, but are found to be at varinot reach back to the petition in either re ance with the requirements of its express terms, spect. But we think that the special excep and yet in some degree beneficial to the party to

whom the services have been rendered or for tion does reach back to it as an affidavit of

whom the materials have been furnished, full merits, and we will treat it as reaching back

performance was undoubtedly required as a conto it as a pleading, without deciding whether dition precedent to the right of recovery. But it does or not.

in most jurisdictions the rigor of this commonIt is manifest that the case must stand

law rule has been relaxed, even in courts of law,

especially in building contracts and other like upon the petition alone for merits, as there

agreements, where the defendant is practically was no other evidence before the court tend forced to accept the result of the work and re

Exceptions from Supreme Judicial Court, Somerset County.

Action by the Skowbegan Water Company against the Skowbegan 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.

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, 88 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 contract.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, $ 1366.] 3. SAME-ACTION FOR BREACH-BURDEN OF PROOF.

In some of the decided cases, reference is made to the “deduction," "recoupment," or "setoft” of the defendant's damages for the obvious purpose of indicating a convenient processor 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 RULES INTENT.

Whether a given stipulation is to be deemed & 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.) 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 hy. drants, 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.) :

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 arleging 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 sai 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

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promises and agreements of said company, for the purpose of recouping in damages.” the said corporation hereby agrees to pay to The presiding judge declined to give this said company, for the use of the water for instruction, and upon this branch of the case the purposes aforesaid, and in the manner instructed the jury, inter alia, as follows: and on the conditions aforesaid, the sum of “Has the plaintiff performed its contract two thousand dollars ($2,000) per annum for in this particular during that term? If it the said period of twenty years, said sum to has, and if it has supplied potable water, be paid in equal semiannual payments as fol under sufficient pressure, then it is entitled lows, viz.: One thousand dollars ($1,000) on to its contract price. If it has not, then we the first day of July, and one thousand dol come to another and very important queslars ($1,000) on the first day of January of tion. The defendant does not seek, in this each and every year during said period of case, to recover damages of the plaintiff. twenty years. The first payment under this The defendant does not seek to have its damagreement to become due and payable on the ages sustained by it through the plaintiff's first day of January, A. D. 1890, and the

breach of contract set off, or recouped, as we amount then due to be estimated pro rata

sometimes say, against the plaintiff's claim. from said nineteenth day of August, A. D. If it did, in order to establish any defense 1889, to said first day of January 1890, and at all, it would be necessary to show that thereafter as above."

the defendant corporation itself had been The plaintiff introduced evidence tending damaged-had property injured-by reason to show a compliance on its part, in general, of the loss of pressure. The losses which with the covenants and conditions of the con individuals in the corporation—that is, the tract, proved nonpayment of the sums sued citizens, individuals in the town, may have for, and rested.

sustained-are not to be considered. They The defendant introduced evidence tending are not parties to this suit. This is merely to show that during the six months prior to

a suit between these two parties, both corJuly 1, 1905, the water furnished by the porations, upon this contract; and, in order plaintiff through its pipes and hydrants for to have any damages allowed or recouped, it the use of the defendant was not under suf would be necessary to show that the corpoficient pressure for the extinguishment of ration, as a corporation, has been injured in fires, several of which occurred during that its property by the want of pressure which period; also that it was not potable. The

the contract called for. But this is not the plaintiff in rebuttal offered evidence tending defendant's position. The position between to show that the pressure was sufficient at these two parties is simply this: The plainall times, except when unavoidable accident tiff sues for the price of an agreed service, prevented, and that the water was potable. and says that it has kept its agreement, and There was no evidence of any damage to

furnished the service called for. The defend. the defendant corporation from any breach

ant says it has not furnished the service, and of contract on the part of the plaintiff, except therefore is not entitled to the pay. The as may be inferred from the foregoing.

question of damages does not come in at all. It was insisted by the plaintiff's counsel

It is merely a question whether the plaintiff at the trial that evidence tending to show

has so far performed its service as to be eninsufficiency of water pressure and impurity

titled to its pay. And, if it had not perof the water was important only as a basis formed its service, it is not entitled to its for recouping damages, and that such dam pay, at least in full. ages only could be recouped as might have “The general rule is that where a man been suffered by the defendant as a corpora

has agreed to do a service for another, to a tion.

certain extent, or in a particular way, and The defendant's counsel, on the other hand,

fails to do that service to the extent he claimed that it was not limited to proof of agreed to, or does it in a different way, the damages in set-off, but that it was incumbent plaintiff with whom he contracts may do one upon the plaintiff to satisfy the jury that of two things. He may refuse to accept the during the six months prior to July 1, 1905, service, and say 'Here, this isn't what I orit had furnished the defendant a constant dered, this isn't what I agreed to pay for, and ample supply of potable water under suffi and I wont take it,' or he may take it, and cient pressure for the extinguishment of say 'This isn't what I agreed to pay for ;' fires; that, unless it had so done, it could re but impliedly, by taking it, he agrees to pay cover only such a sum as the service was what the service is worth. So, to use an reasonably worth to the corporation.

illustration somewhat like that used by counAmong other requests the plaintiff asked sel, supposing a carpenter agrees to build that the following instructions be given to your house upon your land, or to repair it, the jury:

and agrees to do it in a particular way, but "It is not a condition precedent to recop he doesn't do it right-he leaves some rooms ery that the plaintiff should have furnished unfinished for instance, or puts in different a constant and ample supply of potable water material, cheaper material than he agreed to under sufficient pressure for the extinguish put in, or does it in some way that is conment of fires, but insufficiency of pressure trary to the contract. The house is upon can be taken advantage of by the defendant your land, and you can't very well tear that

house down or refuse to accept it. Practi are not to estimate how much less value the cally the man is obliged to accept it, not ab service was to the individual water takers solutely obliged to, but practically, and he by reason of the water not being drinkable, may take it; but he may say 'I shall not if that was the case. You are simply to anpay you the full contract price, because you swer how much less the service was worth to have not done what you agreed to do.' In the corporation, for corporation purposes, such a case as that, if he takes the work and by reason of any impurity in the water, and accepts and uses it, not accepts it as an not because it was not worth so much to inequivalent of the contract, but accepts it as dividuals. It is merely and purely a conhis own for use, the party performing the tract between the two corporations, and I work is not debarred from all compensation cannot too often, perhaps, or too emphaticalbecause he has failed to keep his contract, but ly, say that the loss to individuals the emhe can only recover what the services are barrassment to individuals is not to be reasonably worth,

weighed.” “Now, I apply that same rule in this case. Verdict was for plaintiff in sum of $519.If the plaintiff agreed to perform the agreed 64, and the case comes to this court on exservice, either as to quality of water or as ceptions to the refusal of the presiding judge to sufficiency of pressure, and the service was to give the requested instruction and to the accepted, as it practically had to be, not ab instructions actually given to the jury. solutely, because the corporation might have It is contended in argument in behalf of terminated the contract if they saw fit—that the plaintiff that the exceptions should be is, if they had a reason for doing it-but if sustained for the following reasons: (1) Bethey allowed it to go on and the water stood cause the contract is not properly apportionhere for their use, so they could use it, and able, and performance of six months' serv. did use it, the plaintiff would not be debarred ice is not to be held a condition precedent entirely from recovering merely because the to recovery of a semiannual installment; (2) contract had not been fully kept, but would because, if the first contention be overruled, be entitled to recover what the services actu the condition precedent loses its character as ally rendered were reasonably worth.

such by acceptance of the service and re“There are a great many things, especially tention of the benefits; (3) because breach of in a public service like a water service, that one portion of a severable contract can be enter into the value of that service. It is taken advantage of only by recouping in not merely the number of houses that may damages; (4) because the rule of damages burn, or may not burn. That isn't it. But was uncertain and incorrect. here is a village which the municipal cor It is the opinion of the court, bowever, poration has a right to protect, and was try that upon the facts disclosed by the record ing to protect by its contract. On the oth- in this case these contentions in behalf of the er band, here was the company which neces plaintiff cannot be sustained. The rulings sarily had to lay out large sums of money in and instructions of the presiding judge in re. order to be able to furnish the service. That gard to the plaintiff's right to recover in case was its investment. The value of the serve of partial performance were sufficiently fa. ice to the purchaser, of course, does not de vorable to the plaintiff and substantially in pend upon the cost of it--the amount of the accord with the equitable doctrine that has investment-however, but upon the situation, heretofore prevailed in this state in analthe length of the pipes, as far as we know ogous cases. The decisions in other states anything about them, the size of the vil undoubtedly disclose many different forms of lage, so far as we know anything about it. expressions, if not a variety of opiņions, in All have some bearing as showing what that relation to the proper rule to be applied in service which was actually rendered should adjusting the rights of parties where seryhave been worth. The contract was for $1,- | ices have been rendered or materials furnish037.50 for every six months. That isn't con ed in an honest endeavor to perform a con. trolling. It may be considered by you. tract, but are found to be at variance with There may have been elements of profit in the requirements of its express terms, and the contract. It may have been advanta- / yet in some degree beneficial to the other geous to the plaintiff, or it may have been ad. party. By the strict rules of the common vantageous to the defendant. And whatever law in such a case full performance was unadvantages they would get out of their con doubtedly required as a condition precedent tract, of course, they are entitled to. The to the right of recovery, but in most jurisplaintiff here is entitled not to its contract dictions the rigor of this common-law rule price, or to any advantage which it might has been relaxed, even in courts of law, eshave by its contract, but is entitled to the pecially in building contracts and other like reasonable worth of the service to the pur agreements, where the defendant is practicalchaser.

ly forced to accept the result of the work “So far as the potable water problem is and relief is granted to the plaintiff by apconcerned, as bearing upon the question, the plying the equitable doctrine of substantial rule applies to that feature also.

performance. "In estimating the value of the service to Thus in the early case in this state of Northe corporation, as I þave already said, you ris v. School District, 12 Me, 296, 28 Am.

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