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land, and the balance was within the common- | foreign inheritance taxes from the legacies paywealth of Massachusetts, but that of said bal. able to the respective legatees.” ance, $135,000 was represented by notes secured by mortgages upon Rhode Island proper

[1] In the construction of this, as in any ty, and $22,000 was represented by bonds of other will, the primary question is, in view the cities of Providence and Woonsocket in the of all the circumstances, one of intent. The state of Rhode Island, though said notes and general principle of law is, if possible, to asbonds were physically in Massachusetts.

“(4) That in order to get possession of the certain and give effect to that intent. Boardassets of the estate within the commonwealth man Pet., 16 R. I. 131, 13 Atl. 94. of Massachusetts the executors were obliged [2] The testatrix, at the time of her death, to take out ancillary letters testamentary in was a resident of this state. As is said in the probate court of Suffolk county, Mass., and in accordance with the requirements of the in- Eidman v. Martinez, 184 U. S. 578, 581, 22 heritance tax laws of Massachusetts then in Sup. Ct. 515, 516 (46 L. Ed. 697), in discussforce, to wit, St. 1909, c. 490, pt. IV, paid the ing the rights of a foreign state to tax the following taxes assessed against the following legacies by the commonwealth of Massachusetts, personal property of nonresidents : and required to be paid before the said exec

"It is still the law that personal property is utors could gain control of the assets within sold, transmitted, bequeathed by will, and is that state:

descendible by inheritance according to the law Redwood Library..


of the domicile, and not by that of its situs.” St. Mary's Church, So. Portsmouth.. 100

In Cross v. United States Trust Co., 131 Trinity Church, Newport, rector's fund 250 Bowdoin College...


N. Y. 330, 30 N. E. 125, 15 L. R. A. 606, 27 Home for Aged Women, Bangor.

250 Am. St. Rep. 597, the court said: Eastern Maine General Hospital.

200 "It is a general and universal rule that perEleanor May Barker...

100 sonal property has no locality. It is subject to Mary Adams Willard.

100 the law of the owner's domicile, as well in reGeorge E. Bullard...

500 spect to a disposition of it by act inter vivos Clark Burdick..

500 as to its transmission by last will and testaLouis Curtis.

500 ment, and by succession upon the owner dying

intestate.” Total tax on pecuniary legacies.. $5,500

In Fellows v. Miner, 119 Mass. 541, 544, (5) That the executors under the provisions of chapter 318, § 13, of the General Laws filed Gray, C. J., says: in the office of the probate clerk of the said town "But, the testator's domicile being in this a statement setting out the names of the leg- commonwealth, the question of the validity of atees and the amounts to be paid to each leg- his disposition of his personal property, though atee, and in computing the amounts to be paid to be executed elsewhere, is to be determined by to each legatee the executors deducted in each the law of Massachusetts." case an amount equal to the inheritance tax

[3] The testatrix is presumed to have made paid to the commonwealth of Massachusetts (a copy of which said statement is hereto attached her will in accordance with the existing and marked 'Exhibit B').

laws of this state. Missionary Society V. “(6) That by a decree of said court entered Pell, 14 R. I. 456. May 19, 1913, said statement was amended by

[4-6] In Kingsbury V. Bazeley, 75 N. H. 13, not allowing the deduction of the amount in each case of the Massachusetts inheritance tax, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. and said executors were ordered to pay said Cas. 1355, the court said: legacies in full as appears by the decree herein, "In a gift of a pecuniary legacy of a certain from which decree the executors, the appellants, amount, the apparent intention is to benefit the appealed to the superior court for the reasons legatee to the full amount named. If such will stated in their reasons of appeal filed in this is to be administered by the law of a jurisdiccause.

tion imposing no inheritance tax, or none upon (7) That the said Mary E. W. Perry was the class to which the legatee belongs, the purat the time of her death a resident of the town pose to transmit the full amount to such legaof Middletown and state of Rhode Island. tee would seem clear when the will is read in

"Upon the foregoing agreed statement of facts the light of the law by which it is to be given the parties hereto concur in stating the follow-effect. The conclusion that a less sum was ining question in issue:

tended, because at the time of the testator's "Inasmuch as the will of Mary E. W. Perry death some portion of his property happened to gave the pecuniary legacies to the legatees as be within a jurisdiction imposing a tax upon hereinbefore stated without specifically exempt- such a transfer, seems strange and illogical.” ing the legatees from any deductions, which of the two following contentions is correct?

In Re Hartmann's Estate, 70 N. J. Eq. 664, "I. The executors contend that the statement 667, 62 Atl. 560, 562, the court, in discussing as originally filed should be allowed, and that the right both of the state of the domicile and the inheritance tax assessed by the common- the state where the property is located, says: wealth of Massachusetts against the legacies given to the respective legatees should be a charge

"The great weight of authority favors the against the legatees, and deducted from their principle

that as to personal property legacies before payment to reimburse the estate its situs, for the purpose of a succession tax, is for the amount advanced for their taxes.

the domicile of the decedent, and the right to "II. The appellees contend that the state- its imposition is not affected by the statute of ment allowed by the probate court of Middle- a foreign state, which subjects to similar taxatown should be confirmed, and that the inherit- tion such portion of the personal estate of any ance taxes paid to Massachusetts are part of nonresident testator as he may take and leave the expenses of administration incurred in ob- there for safekeeping, or until it should suit his taining the assets of the estate, and that inas. convenience to carry it away.” much as the distribution of the estate should If it be true that such taxation by a forland of which the testatrix was a domiciled eign state is immaterial when the law of the resident at the time of her death, the executors state of the domicile also imposes such a have no right to deduct any amounts paid for tax, it must be equally true when the state

of the domicile has no statute imposing such, essary to get in order to pay the legacies, a tax.

and upon which there was a tax of 5 per cent. In Callahan v. Woodbridge, 171 Mass. 595, The question arose as to whether this tax 597, 51 N. E. 176, 177, the court says: was to be deducted from a pecuniary legacy

"The legal right of the Legislature to make (which was not given to an individual and such a provision in regard to the property of did not come within the provisions of the will a nonresident owner rests upon the fact that the property is within the state, and subject to as to payment of inheritance taxes), or its jurisdiction. * * It covers the proper- whether it was a proper charge against the ty within the jurisdiction. A ground for its ex: estate. The court, on the ground that this ercise is that the property has the protection of our laws, and that our laws are invoked for the matter was regulated purely on the basis of administration of it when a change of owner- the domicile of the testator, held that the ship is to be effected."

amount could not be deducted from the legaAs is stated in Kingsbury v. Bazeley, su- cies. At page 17 of 75 N. H., at page 918 of pra:

70 Atl. (139 Am. St. Rep. 664, 20 Ann. Cas. “As the foreign tax depends upon the juris- 1355), the court, Parsons, C. J., says: diction over the property, and is not sustain "In a gift of a pecuniary legacy of a certain able as a regulation of the exercise of testa- amount, the apparent intention is to benefit the mentary power by a citizen of another state, legatee to the full amount named. If such will it follows that the tax is merely a charge upon is to be administered by the law of a jurisdicthe particular property, and not upon pecuniary tion imposing no inheritance tax, or none upon legacies given by the will."

the class to which the legatee belongs, the purThe only reason therefore for the execu- nose to transmit the full amount to such legatee tors paying the tax was the necessity of light of the law by which it is to be given ef

would seem clear, when the will is read in the getting control of the property. Under the fect. The conclusion that a less sum was incommon law such a charge was proper as an tended, because at the time of the testator's expense of administration.

death some portion of his property happened to

be within a jurisdiction imposing a tax upon In Perry v. Meadowcroft, 4 Beav. 204, such a transfer, seems strained and illogical. the executors had incurred costs, charges, The sole ground upon which the collection of and expenses in getting in some costs due to such tax by the state of the locus of the propthe testator, and which had been specifically erty, when different from that of the testator's

domicile, can be sustained is the jurisdiction bequeathed. The executors presented a peti- over the property which is given by its situs. tion for reference to inquire whether they Gardiner v. Carter, 74 N. H. 507, 69 Atl. 939 ; had properly incurred any costs, charges, and Callahan y. Woodbridge, 171 Mass. 595, 597,

51 N. E. 176. To hold that the effect of the expenses in respect of these matters; and foreign law is to reduce the legacy given by the the question was whether these expenses will construed in accordance with the law of ought to be borne by the general estate, or by the testator's domicile is to permit the foreign the specific legatee out of his legacy. The law to regulate the testamentary capacity of a

. Master of the Rolls said:

not extend beyond the jurisdiction which creat"I consider it part of the duty of the execu- ed it. If the rights in controversy depend upon tors to get in all the testator's estate, whether the foreign law, those rights are determined in specifically bequeathed or otherwise; and I accordance with that law. MacDonald v. Railknow of no instance in which the expenses have way, 71 N. H. 448, 52 Atl. 982, 59 L. R. A. not been paid out of the general estate, as part 448, 93 Am. St. Rep. 550. But when the right of the expenses of administration."

involved depends, not upon the foreign law, but It is the ordinary duty of an executor or upon that of the forum, the foreign law is im

material and incompetent upon the question at administrator to collect and get in the assets issue. It is obvious that the state has no juof the estate. Grinnell v. Baker, 17 R. I. 41, risdiction over a right of succession which ac49, 20 Atl. 8, 23 Atl. 911; Hendrick v. Pro- crues under the law of the foreign state. That bate Court, 25 R. I. 361, 368, 55 Atl. 881. The and with which it is not concerned.'

is something in which this state has no interest,

In re gift of a residue is subject to the precedent Bronson, 150 N. Y. 1, 8, 44 N. E. 707, 34 L. R. claims upon the estate. It is a gift of what A. 238, 55 Am. St. Rep. 632. remains after the debts and legacies are paid. diction over the property, and is not sustain.

"As the foreign tax depends upon the jurisPetition of Mathewson, 12 R. I. 145; Nicker-able as a regulation of the exercise of testason v. Bragg, 21 R. I. 296, 298, 43 Atl. 539. mentary power by the citizen of another state,

The only case directly in point upon the it follows that the tax is merely a charge upon question presented that has come to our at-legacies given by the will.

the particular property, and not upon pecuniary

That the foreign tention is Kingsbury V. Bazeley, 75 N. H. state may regulate the amount of the imposition 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. made by it, or determine whether it will make Cas. 1355, supra. That case covers practical- any at all, by, the character of the legacies


en by the will, is immaterial. Having jurisdicly the same question as here. There the tion over the property, it is for such state alone testatrix was a domiciled resident of New to determine upon what basis it will exact payHampshire, which had a 5 per cent. collater-courts are governed by the law of the testator's

to a al inheritance tax. The will provided:

domicile, it has never been held that in the ad“And I further direct that my executors pay ministration of an estate the courts of the tesfrom my estate any and all inheritance and tator's domicile would be governed by the law succession taxes that may become due upon of the situs of personal property. The estate any legacies given by this will to individuals, so within the control of the court is to be adminthat said legatees may be benefited to the full istered according to the law of the state. The amount of their respective legacies.”

property to be administered embraces all that Part of the estate was money or personal ecutor has been able to find elsewhere and bring

was originally within the state, or that the exproperty in Massachusetts which it was nec- here. Whatever sums the executor may be

obliged to pay to bring the property within the the capital stock of the Lonsdale Company, state merely reduce the amount within the con- or to the defendant. The statute, approved trol of the court."

July 1, 1862 (12 U. S. Stat. at Large, 486, C. The reasoning of this case commends itself 119, § 112), provided for receipts to be given to us as sound, convincing, and applicable by the collector or deputy collector, upon to the case at bar.

payment of the duty or tax, which shall be Williams v. Herrick, 18 R. I. 120, 25 Atl. sufficient evidence to entitle the person who 1099, cited by appellants, is not in point. In paid such duty or tax, as having taken the that case a testator gave all his estate, after burden or trust of administering the estate, the payment of debts and funeral expenses, to be allowed for such payment by the perto his widow for life with remainder over. son or persons entitled to the beneficial interUpon the question of the settlement of the est in respect of which such tax or duty was account of the administrator, the court said: naid.” The statute of 1862 was superseded

“Although the taxes are payable out of the by a statute approved June 30, 1864, c. 173, 13 income, yet inasmuch as the property of the estate is assessable by statute to the administra Stat. 223 (being the statute under which the tor (Pub. Stat. R. I. chap. 42, $$ 12, 13), we duty in question is claimed to have been think that the taxes are properly charged in the paid), in which the provision above quoted is administrator's account. paid to Mrs. Olney it will devolve upon the ad- omitted. An amendatory statute, approved ministrator to see that the taxes and any other July 13, 1866, c. 184, 14 Stat. 98, provides expense payable out of income are properly de- that any tax paid under the provisions of ducted from the income so paid to her."

the statute of 1864, relating to this subject, Appellants also cite Fitzgerald v. R. I. "shall be deducted from the particular legaHospital Trust Co., Trustee, et al., 24 R. I. cy or distributive share in account of which 59, 52 Atl. 814. In this case a fund was be the same is charged.” The court said (page queathed in trust to pay over the income less 297 of 9 R. I.): charges to Fitzgerald, and upon his decease

"The defendant finds in the omission from the principal of the trust fund was to be dis- the statute of 1864 of the words above quoted posed of as part of the residue of the estate. from the statute of 1862, and in the amendWar Revenue Act, June 13, 1898, c. 418, 30 under the statute of 1861, as it existed prior to

ment of 1866, grounds for an argument, that Stat. 464 (U. S. Comp. St. 1901, p. 2307) in the amendment of 1866, the legacy duties were section 29, made subject to a tax any person a charge upon the estate at large, and payable having in charge or trust any legacy "where out of the residue. But we think the omission

and the amendment permit no sufficient warthe whole amount of such personal property rant for such a construction. The omitted pro* * * shall exceed the sum of ten thou- vision relates to the credit to be given to the sand dollars * passing after the pas- receipt of the collector or deputy collector as

evidence in the settlement of the estate, and only sage of this act.” The court said:

incidentally, as it were, indicates that the du“The main question raised by the pleadings in ties are chargeable to the persons entitled to the case at bar, as we understand them, is, who, the beneficial interest in respect of which they for the purpose of the payment of said tax, as- were paid, significantly differing, in this resessed, as it confessedly was, upon and in re- spect, "from the amendatory provision of the spect of the life estate only, is to be regarded statute of 1866. We see no reason for supposas the legatee, the complainant, the life tenant, ing that the language referred to was omitted or the respondents, who are the present living from the statute of 1864, in any other view than representatives of the contingent remainder- because it was supposed to be superfluous or unmen? We think it is clear that but one answer | desirable for the purpose for which it was origcan properly be given to this question, namely, inally introduced. We think that under the the life tenant of said fund, who is the complain statute of 1864, notwithstanding the omission, ant in this case."

the duties paid in respect of any particular legaThe court also cites Act of Congress March cies are, as between the executor and the lega2. 1901, c. 806, § 10, 31 Stat. 946 (U. S. Comp. tees, in the settlement of the estate, to be deSt. 1901, p. 2307), which amends said act of they have been paid, or charged to the legatees, June 13, 1898, and which contains the pro- respectively, who are entitled to such legacies, vision that:

and that the amendment of 1866 was simply "Any tax paid under the provisions of sec- declaratory, being designed to obviate any doubt

” tions twenty-nine and thirty, shall be deducted or question is regard to the construction." from the particular legacy or distributive share In this case the tax was imposed by a staton account of which the same is charged.' ute of the United States. It is not to be

Counsel for the appellants also cite God-doubted that the United States has power to dard v. Goddard, 9 R. I. 293. In this case it impose a tax upon legacies, given by a domiappeared from the agreed statement of facts ciled inhabitant in any state or territory, and that Thomas P. Ives deceased leaving a last to provide that the tax shall be deducted will and testament, duly admitted to probate, from the particular legacy or distributive whereby he devised all his shares in the capi- share on account of which the same is chargtal stock of the Lonsdale Company, a corpo- ed. This is a very different matter from the ration, to three cousins, of whom the defend- imposition by the statute of one state of a ant was one, and to the survivor of them, tax upon a legacy given under the laws of a share and share alike. His executors paid sister state, by the will of a domiciled intaxes upon these shares to the United habitant of said sister state. In such case States, and this suit was brought to deter- the statute has effect only because certain mine the question whether said legacy taxes property of the testator happens, at the time were properly chargeable to the shares in of his death, to be, not within the state of his

91 A.-3

domicile, but within the state whose statute , good working order," and be paid for as extra imposes the tax.

work if so decided by the engineer, where 240

additional feet of underdrain was found necThe tax imposed by the Massachusetts essary to join the new work to the old and orstatute depends entirely upon the jurisdic- dered constructed at the same rate, additional tion over the property by reason of its situs work and damage caused by the stoppage of the within that state. Said statute cannot regu- old drain and its overflowing the new work

when tapped were extras within the contract, late the exercise of testamentary power by and had to be allowed by the engineer to be rea domiciled inhabitant of another state. The coverable. tax, therefore, is simply a charge upon the [Ed. Note. For other cases, see Municipal particular property within the jurisdiction of Corporations, Cent. Dig. 88 892, 89242; Dec.

Dig. $ 360.*] the state whose statute imposes the tax. That the state where the property is situated 4. MUNICIPAL CORPORATIONS (§ 360*)–PUB

LIC IMPROVEMENTS - CONTRACTS EXTRA can regulate the amount of the tax to be im

WORK. posed by the character of the gifts made by Where one who contracted with a town to the will is immaterial. Its statute has no ex- lay sewers and add new work to existing work traterritorial power, and cannot regulate ditional underdrain necessary to connect with

when necessary was ordered to construct an adthe administration of the estate and the dis- the old work, the construction of the additiontribution of the property in the state of the al drain amounted merely to a modification of testator's domicile.

the original contract or a new contract on the Our decision is that the amount paid by to be allowed for by the engineer as extra work,

same terms, and work performed thereon had the executors on account of the inheritance as provided by the original contract; the paytax imposed by the Massachusetts law, in ments for the additional drain having been made order to get possession of the assets of the at the same rate and in accordance with the

same routine as under the original contract, and estate, cannot be deducted by the executors the parties having treated the additional work from the amount of the pecuniary legacies be the same as that performed under the original queathed by the testatrix, but that the same contract by deferring to the engineer's super

vision, etc. is a proper expense of administration, neces

[Ed. Note. For other cases, see Municipal sarily incurred by the executors in the per- Corporations, Cent. Dig. 88 892, 89242 ; Dec. formance of their duty in collecting and get- Dig. 8 360.*] ting in the property belonging to the estate. 5. MUNICIPAL CORPORATIONS (8 360*)-PUB

The papers in the cause, with our decision LIC IMPROVEMENTS CONTRACTS - EXTRA certified thereon, are sent back to the supe

WORK. rior court for Newport county, with direction a town for a certain price was entitled to po fur

One who agreed to lay an underdrain for to enter a decree dismissing the appeal and ther compensation for work incident thereto, confirming the decree of the probate court. even if such work was much more than he an


[Ed. Note. For other cases, see Municipal (37 R. I. 227)

Corporations, Cent. Dig. 88 892, 89242; Dec. CALLAN v. PECK, Town Treasurer.

Dig. S 360.*] (No. 4732.)


LIC IMPROVEMENTS CONTRACTS - EXTRA (Supreme Court of Rhode Island. July 10,

WORK, 1914.)

One who laid sewers and underdrains for 1. MUNICIPAL CORPORATIONS (f 374*)-PUB- a town, under a contract clearly providing for LIC IMPROVEMENTS—CONTRACTS REMEDIES what and how he should be paid, was strictly OF CONTRACTOR-EVIDENCE.

limited thereby, and could not recover for pumpIn an action against a town treasurer for ing, etc., caused by overflow, where the conwork and damages caused by the underdrain, tract provided that he should do all pumping, with which plaintiff contracted to make a con- etc., and that for all work and materials and nection, being stopped up and letting out large all loss or damage he should receive only a quantities of water when tapped, a question as stated sum. to what course plaintiff recommended with ref [Ed. Note.-For other cases, see Municipal erence to the drain he was installing was prop- Corporations, Cent. Dig. 88 892, 89212; Dec. erly excluded, and his evidencé confined to show- Dig. $ 360.*] ing that the town's plans were improper. [Ed. Note.-For other cases, see Municipal | 7. MUNICIPAL CORPORATIONS (8 360*)-PUB

LIC IMPROVEMENTS CONTRACTS EXTRA Corporations, Cent. Dig. 88 905, 910; Dec. Dig.

WORK. $ 374.*]

One who contracted to lay sewers for a 2. TRIAL (8 45*)-EXCLUSION OF EVIDENCE, town could not recover for overflow from an old OFFER OF PROOF.

underdrain to which connection was being made, An exception to the exclusion of a question because of representations that it was a workwill not avail because the answer would have ing drain, whereas it was stopped up, where shown a certain fact, where no offer of proof the contract required him to do all pumping, thereof was made.

and to accept a certain sum for all work and [Ed. Note.-For other cases, see Trial, Cent. material, and all loss or damage. Dig. $$ 110–114; Dec. Dig. § 45.*]

[Ed. Note.-For other cases, see Municipal 3. MUNICIPAL CORPORATIONS (8 360*)-PUB- Dig. & 360.*]

Corporations, Cent. Dig. 88 892, 89242; Dec. LIC IMPROVEMENTS CONTRACTS EXTRA WORK.

8. MUNICIPAL CORPORATIONS (§ 360*)-PUBUnder a contract with a town to lay sew LIC IMPROVEMENTS CONTRACTS EXTRA ers in accordance with the plans and directions WORK. made and “to be made," and that “new work No recovery could be had for extra work shall be added when necessary, to leave all in | under a contract with a town for the construc*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tion of sewers, without a written order from 14. MUNICIPAL CORPORATIONS (§ 354*)-PUBthe engineer as required by the contract, which LIC IMPROVEMENTS-CONTRACTS-MISREPREprovision the engineer could no more waive SENTATION-RESCISSION. than any other provision of the contract.

While one could rescind his contract to con[Ed. Note. For other cases, see Municipal struct sewers for a town and sue on a quantum Corporations, Cent. Dig. $ 892, 89212; Dec. meruit or ratify the contract and sue in deceit Dig. § 360.*1

for damages, if there had been a fraudulent rep

resentation that the old underdrain which over9. MUNICIPAL CORPORATIONS ($ 360*)-PUB- flowed the new work when it was tapped was

LIC IMPROVEMENTS CONTRACTS – EXTRA a working underdrain, whereas it was stopped WORK.

up, he could not rescind, where misrepresentaKnowledge that unlooked for work was be- tions made were innocent. ing done by one who contracted to lay sewers [Ed. Note. For other cases, see Municipal for a town did not create a promise to pay Corporations, Cent. Dig. 88 886, 887; Dec. Dig. therefor.

§ 354.*] [Ed. Note.-For other cases, see Municipal 15. ASSUMPSIT, ACTION OF ($ 5*) — MUNICICorporations, Cent. Dig. $8 892, 89212; Dec. PAL CORPORATION DEFECTS IN DRAINS Dig. $ 360.*]


COUNTS. 10. MUNICIPAL CORPORATIONS ($ 360*)-PUB The wrongful act of a town in opening up

LIC IMPROVEMENTS – CONTRACTS – EXTRA a clogged underdrain and pouring water in upWORK.

on new work which was being constructed to A claim for extra work under a contract connect with such drain would not render the to lay sewers for a town, even if proper and the town liable on the common counts in assumpsit engineer's written allowance thereof had been on an implied contract to pay for pumping the waived, was subject to the conditions of the water out and the damages resulting from letcontract, which provided that the contractor ting it in; the remedy, if any, being in tort. should not be entitled to payment except in the [Ed. Note. For other cases, see Assumpsit, manner therein set forth.

Action of, Cent. Dig. $8 14-26; Dec. Dig. 8 5.*] [Ed. Note.

For other cases, see Municipal Corporations, Cent. Dig. $$ 892, 89212; Dec. Exceptions from Superior Court, ProviDig. § 360.*]

dence and Bristol Counties; Chester W. Bar11. MUNICIPAL CORPORATIONS (8 354*)-PUB- rows. Judge.

LIC IMPROVEMENTS-CONTRACTS-MODIFICA Action by Luke H. Callan against George
The laying of an additional underdrain to Bristol. Nonsuit granted, and case transfer-

H. Peck, as Town Treasurer of the town of connect that being laid for a town with the existing drains, by order of the commissioners fix- red from the superior court on plaintiff's exing the price, was a modification or extension ceptions. Exceptions overruled, and case reof the contract, which provided that additional mitted for entry of judgment. work should be done when necessary to put the

. system in working order, though it provided A. B. Crafts and William H. McSoley, that the engineer should order the same and fix both of Providence, for plaintiff. William T. the price, as it was ordered by the commissioners who may have consulted the engineer in fix- O'Donnell, of Bristol, and Waterman & ing the price, and anyhow they could waive Greenlaw, of Providence, for defendant. such provisions. [Ed. Note. For other cases, see Municipal

JOHNSON, C. J. This is an action of the Corporations, Cent. Dig. 88 886, 887; Dec. Dig. § 354.*]

case in assumpsit brought by Luke H. Cal12. MUNICIPAL CORPORATIONS (360*)-PUB-town treasurer of the town of Bristol.

lan, of Bristol, against the defendant, as LIC IMPROVEMENTS CONTRACTS - EXTRA


declaration contains a count on book account The construction of an additional under- and certain common counts. No book account drain to connect that being laid for a town with was introduced in evidence, but there was inthe old drains was not outside of the contract, which provided that additional work should be troduced in evidence a certain contract made done when necessary, to be paid for as extra by and between the plaintiff and the town work, because it was not an incidental change of Bristol, and a notice to the town council made necessary during the progress of the work; it having been supposed that such drain relating to the claim that the plaintiff then was already in the ground, and its absence only made. The case was tried before his honor, being discovered after the work was begun. Mr. Justice Barrows, and a jury on the 3d,

[Ed. Note.-For other cases, see Municipal | 4th, and 5th days of December, 1913, and, Corporations, Cent. Dig. 88 892, 89242 ; Dec. the justice presiding having ruled out certain Dig. $ 360.*1

testimony, the plaintiff rested his case, and 13. MUNICIPAL CORPORATIONS (360*)-PUB-a nonsuit was thereupon granted. ThereLIC IMPROVEMENTS – CONTRACTS EXTRA

afterwards he took the usual procedure to WORK.

A provision in a contract with a town for bring before this court certain exceptions, the construction of sewers that the engineer and he is now before this court upon his bill could correct any errors or omissions when nec of exceptions as allowed by the trial jusessary to the proper fulfillment of the plans, tice. authorized the ordering of an additional underdrain where it was supposed a connection could

From an examination of the bill of excepbe made with the existing drains at a certain tions we think that most of the exceptions point, but it was found necessary to go 240 feet can be eliminated for the purposes of this farther.

[Ed. Note. For other cases, see Municipal hearing, as they do not affect the question as Corporations, Cent. Dig. $8 892, 89212; Dec. to whether or not the nonsuit was properly Dig. § 360.*)


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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