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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 property, and $22,000 was represented by bonds of the cities of Providence and Woonsocket in the state of Rhode Island, though said notes and bonds were physically in Massachusetts.

"(4) That in order to get possession of the assets of the estate within the commonwealth of Massachusetts the executors were obliged to take out ancillary letters testamentary in the probate court of Suffolk county, Mass., and in accordance with the requirements of the inheritance tax laws of Massachusetts then in force, to wit, St. 1909, c. 490, pt. IV, paid the following taxes assessed against the following legacies by the commonwealth of Massachusetts, and required to be paid before the said executors could gain control of the assets within that state:

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[1] In the construction of this, as in any other will, the primary question is, in view of all the circumstances, one of intent. The general principle of law is, if possible, to ascertain and give effect to that intent. Boardman Pet., 16 R. I. 131, 13 Atl. 94.

[2] The testatrix, at the time of her death, was a resident of this state. As is said in Eidman v. Martinez, 184 U. S. 578, 581, 22 Sup. Ct. 515, 516 (46 L. Ed. 697), in discussing the rights of a foreign state to tax the personal property of nonresidents:

"It is still the law that personal property is sold, transmitted, bequeathed by will, and is descendible by inheritance according to the law of the domicile, and not by that of its situs."

$2.500
100
In Cross v. United States Trust Co., 131
250
N. Y. 330, 30 N. E. 125, 15 L. R. A. 606, 27
500
250 Am. St. Rep. 597, the court said:

200 "It is a general and universal rule that per-
100 sonal property has no locality. It is subject to
100 the law of the owner's domicile, as well in re-
500 spect to a disposition of it by act inter vivos
500 as to its transmission by last will and testa-
500 ment, and by succession upon the owner dying
intestate."

Total tax on pecuniary legacies.. $5,500 "(5) That the executors under the provisions of chapter 318. § 13, of the General Laws filed in the office of the probate clerk of the said town a statement setting out the names of the legatees and the amounts to be paid to each legatee, and in computing the amounts to be paid to each legatee the executors deducted in each case an amount equal to the inheritance tax paid to the commonwealth of Massachusetts (a copy of which said statement is hereto attached and marked 'Exhibit B').

"(6) That by a decree of said court entered May 19, 1913, said statement was amended by not allowing the deduction of the amount in each case of the Massachusetts inheritance tax, and said executors were ordered to pay said legacies in full as appears by the decree herein, from which decree the executors, the appellants, appealed to the superior court for the reasons stated in their reasons of appeal filed in this

cause.

"(7) That the said Mary E. W. Perry was at the time of her death a resident of the town of Middletown and state of Rhode Island.

"Upon the foregoing agreed statement of facts the parties hereto concur in stating the following question in issue:

"Inasmuch as the will of Mary E. W. Perry gave the pecuniary legacies to the legatees as hereinbefore stated without specifically exempting the legatees from any deductions, which of the two following contentions is correct?

"I. The executors contend that the statement as originally filed should be allowed, and that the inheritance tax assessed by the commonwealth of Massachusetts against the legacies given to the respective legatees should be a charge against the legatees, and deducted from their legacies before payment to reimburse the estate for the amount advanced for their taxes.

"II. The appellees contend that the statement allowed by the probate court of Middletown should be confirmed, and that the inheritance taxes paid to Massachusetts are part of the expenses of administration incurred in obtaining the assets of the estate, and that inasmuch as the distribution of the estate should

be made by the laws of the state of Rhode Island of which the testatrix was a domiciled resident at the time of her death, the executors have no right to deduct any amounts paid for

In Fellows v. Miner, 119 Mass. 541, 544, Gray, C. J., says:

"But, the testator's domicile being in this commonwealth, the question of the validity of his disposition of his personal property, though to be executed elsewhere, is to be determined by the law of Massachusetts."

[3] The testatrix is presumed to have made her will in accordance with the existing laws of this state. Missionary Society v. Pell, 14 R. I. 456.

[4-6] In Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355, the court said:

"In a gift of a pecuniary legacy of a certain amount, the apparent intention is to benefit the legatee to the full amount named. If such will is to be administered by the law of a jurisdiction imposing no inheritance tax, or none upon the class to which the legatee belongs, the purpose to transmit the full amount to such legatee would seem clear when the will is read in the light of the law by which it is to be given effect. The conclusion that a less sum was intended, because at the time of the testator's death some portion of his property happened to be within a jurisdiction imposing a tax upon such a transfer, seems strange and illogical."

*

In Re Hartmann's Estate, 70 N. J. Eq. 664, 667, 62 Atl. 560, 562, the court, in discussing the right both of the state of the domicile and the state where the property is located, says: "The great weight of authority favors the principle * that as to personal property its situs, for the purpose of a succession tax, is the domicile of the decedent, and the right to its imposition is not affected by the statute of a foreign state, which subjects to similar taxation such portion of the personal estate of any nonresident testator as he may take and leave there for safekeeping, or until it should suit his convenience to carry it away."

If it be true that such taxation by a foreign state is immaterial when the law of the state of the domicile also imposes such a 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:

"The legal right of the Legislature to make such a provision in regard to the property of a nonresident owner rests upon the fact that the property is within the state, and subject to its jurisdiction. * * ** It covers the property within the jurisdiction. A ground for its exercise is that the property has the protection of our laws, and that our laws are invoked for the administration of it when a change of ownership is to be effected."

was to be deducted from a pecuniary legacy (which was not given to an individual and did not come within the provisions of the will as to payment of inheritance taxes), or whether it was a proper charge against the estate. The court, on the ground that this matter was regulated purely on the basis of the domicile of the testator, held that the amount could not be deducted from the lega

As 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. 1355), the court, Parsons, C. J., says:

"As the foreign tax depends upon the jurisdiction over the property, and is not sustainable as a regulation of the exercise of testamentary power by a citizen of another state, it follows that the tax is merely a charge upon the particular property, and not upon pecuniary legacies given by the will."

In Perry v. Meadowcroft, 4 Beav. 204, the executors had incurred costs, charges, and expenses in getting in some costs due to the testator, and which had been specifically bequeathed. The executors presented a petition for reference to inquire whether they had properly incurred any costs, charges, and expenses in respect of these matters; and the question was whether these expenses ought to be borne by the general estate, or by the specific legatee out of his legacy. The

"In a gift of a pecuniary legacy of a certain amount, the apparent intention is to benefit the legatee to the full amount named. If such will is to be administered by the law of a jurisdiction imposing no inheritance tax, or none upon 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 efwould seem clear, when the will is read in the getting control of the property. Under the fect. 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 death some portion of his property happened to expense of administration. be within a jurisdiction imposing a tax upon such a transfer, seems strained and illogical. The sole ground upon which the collection of such tax by the state of the locus of the property, when different from that of the testator's domicile, can be sustained is the jurisdiction over the property which is given by its situs. Gardiner v. Carter, 74 N. H. 507, 69 Atl. 939; 51 N. E. 176. To hold that the effect of the Callahan v. Woodbridge, 171 Mass. 595, 597, foreign law is to reduce the legacy given by the will construed in accordance with the law of the testator's domicile is to permit the foreign law to regulate the testamentary capacity of a citizen of this state. But the foreign law cannot extend beyond the jurisdiction which created it. If the rights in controversy depend upon the foreign law, those rights are determined in accordance with that law. MacDonald v. Railway, 71 N. H. 448, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. But when the right involved depends, not upon the foreign law, but upon that of the forum, the foreign law is immaterial and incompetent upon the question at issue. It is obvious that the state has no jurisdiction over a right of succession which accrues under the law of the foreign state. That is something in which this state has no interest, and with which it is not concerned.' In re Bronson, 150 N. Y. 1, 8, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632.

Master of the Rolls said:

"I consider it part of the duty of the executors to get in all the testator's estate, whether specifically bequeathed or otherwise; and I know of no instance in which the expenses have not been paid out of the general estate, as part of the expenses of administration."

It is the ordinary duty of an executor or administrator to collect and get in the assets of the estate. Grinnell v. Baker, 17 R. I. 41, 49, 20 Atl. 8, 23 Atl. 911; Hendrick v. Probate Court, 25 R. I. 361, 368, 55 Atl. 881. The gift of a residue is subject to the precedent claims upon the estate. It is a gift of what remains after the debts and legacies are paid. Petition of Mathewson, 12 R. I. 145; Nickerson v. Bragg, 21 R. I. 296, 298, 43 Atl. 539. The only case directly in point upon the question presented that has come to our attention is Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355, supra. That case covers practically the same question as here. There the testatrix was a domiciled resident of New Hampshire, which had a 5 per cent. collateral inheritance tax. The will provided:

"And I further direct that my executors pay from my estate any and all inheritance and succession taxes that may become due upon any legacies given by this will to individuals, so that said legatees may be benefited to the full amount of their respective legacies."

Part of the estate was money or personal property, in Massachusetts which it was nec

diction over the property, and is not sustain "As the foreign tax depends upon the jurisable as a regulation of the exercise of testamentary power by the citizen of another state, it follows that the tax is merely a charge upon the particular property, and not upon pecuniary legacies given by the will. That the foreign state may regulate the amount of the imposition made by it, or determine whether it will make any at all, by the character of the legacies giv en by the will, is immaterial. Having jurisdic tion over the property, it is for such state alone to determine upon what basis it will exact payment. While in giving effect to a foreign will courts are governed by the law of the testator's domicile, it has never been held that in the administration of an estate the courts of the testator's domicile would be governed by the law of the situs of personal property. The estate within the control of the court is to be administered according to the law of the state. property to be administered embraces all that ecutor has been able to find elsewhere and bring was originally within the state, or that the exhere. Whatever sums the executor may be

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Williams v. Herrick, 18 R. I. 120, 25 Atl. 1099, cited by appellants, is not in point. In that case a testator gave all his estate, after the payment of debts and funeral expenses, to his widow for life with remainder over. Upon the question of the settlement of the account of the administrator, the court said: "Although the taxes are payable out of the income, yet inasmuch as the property of the estate is assessable by statute to the administra: tor (Pub. Stat. R. I. chap. 42, §§ 12, 13), we think that the taxes are properly charged in the administrator's account. When the income is paid to Mrs. Olney it will devolve upon the administrator to see that the taxes and any other expense payable out of income are properly deducted from the income so paid to her."

Appellants also cite Fitzgerald v. R. I. Hospital Trust Co., Trustee, et al., 24 R. I. 59, 52 Atl. 814. In this case a fund was bequeathed in trust to pay over the income less charges to Fitzgerald, and upon his decease the principal of the trust fund was to be disposed of as part of the residue of the estate. War Revenue Act, June 13, 1898, c. 448, 30 Stat. 464 (U. S. Comp. St. 1901, p. 2307) in section 29, made subject to a tax any person having in charge or trust any legacy "where the whole amount of such personal property *** shall exceed the sum of ten thousand dollars passing after the passage of this act." The court said:

"The main question raised by the pleadings in the case at bar, as we understand them, is, who, for the purpose of the payment of said tax, assessed, as it confessedly was, upon and in respect of the life estate only, is to be regarded as the legatee, the complainant, the life tenant, or the respondents, who are the present living representatives of the contingent remaindermen? We think it is clear that but one answer can properly be given to this question, namely, the life tenant of said fund, who is the complain ant in this case.'

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The court also cites Act of Congress March 2. 1901, c. 806, § 10, 31 Stat. 946 (U. S. Comp. St. 1901, p. 2307), which amends said act of June 13, 1898, and which contains the provision that:

"Any tax paid under the provisions of sections twenty-nine and thirty, shall be deducted from the particular legacy or distributive share on account of which the same is charged.”

Counsel for the appellants also cite Goddard v. Goddard, 9 R. I. 293. In this case it appeared from the agreed statement of facts that Thomas P. Ives deceased leaving a last will and testament, duly admitted to probate, whereby he devised all his shares in the capital stock of the Lonsdale Company, a corporation, to three cousins, of whom the defendant was one, and to the survivor of them, share and share alike. His executors paid taxes upon these shares to these shares to the United States, and this suit was brought to determine the question whether said legacy taxes were properly chargeable to the shares in 91 A.-3

the capital stock of the Lonsdale Company, or to the defendant. The statute, approved July 1, 1862 (12 U. S. Stat. at Large, 486, c. 119, § 112), provided for receipts to be given by the collector or deputy collector, upon payment of the duty or tax, which shall be sufficient evidence to entitle the person who paid such duty or tax, as having taken the burden or trust of administering the estate, "to be allowed for such payment by the person or persons entitled to the beneficial interest in respect of which such tax or duty was paid." The statute of 1862 was superseded by a statute approved June 30, 1864, c. 173, 13 Stat. 223 (being the statute under which the duty in question is claimed to have been paid), in which the provision above quoted is

omitted.

An amendatory statute, approved July 13, 1866, c. 184, 14 Stat. 98, provides that any tax paid under the provisions of the statute of 1864, relating to this subject, "shall be deducted from the particular legacy or distributive share in account of which the same is charged." The court said (page 297 of 9 R. I.):

"The defendant finds in the omission from the statute of 1864 of the words above quoted from the statute of 1862, and in the amendunder the statute of 1864, as it existed prior to ment of 1866, grounds for an argument, that the amendment of 1866, the legacy duties were a charge upon the estate at large, and payable out of the residue. But we think the omission and the amendment permit no sufficient warrant for such a construction. The omitted provision relates to the credit to be given to the receipt of the collector or deputy collector as evidence in the settlement of the estate, and only incidentally, as it were, indicates that the duties are chargeable to the persons entitled to the beneficial interest in respect of which they were paid, significantly differing, in this respect, from the amendatory provision of the statute of 1866. We see no reason for supposing that the language referred to was omitted from the statute of 1864, in any other view than because it was supposed to be superfluous or undesirable for the purpose for which it was originally introduced. We think that under the statute of 1864, notwithstanding the omission, the duties paid in respect of any particular legacies are, as between the executor and the legatees, in the settlement of the estate, to be deducted from the legacies in respect of which they have been paid, or charged to the legatees, respectively, who are entitled to such legacies, and that the amendment of 1866 was simply declaratory, being designed to obviate any doubt or question is regard to the construction."

In this case the tax was imposed by a statute of the United States. It is not to be doubted that the United States has power to impose a tax upon legacies, given by a domiciled inhabitant in any state or territory, and to provide that the tax shall be deducted from the particular legacy or distributive share on account of which the same is charged. This is a very different matter from the imposition by the statute of one state of a tax upon a legacy given under the laws of a sister state, by the will of a domiciled inhabitant of said sister state. In such case the statute has effect only because certain property of the testator happens, at the time of his death, to be, not within the state of his

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

The tax imposed by the Massachusetts statute depends entirely upon the jurisdiction over the property by reason of its situs within that state. Said statute cannot regulate the exercise of testamentary power by a domiciled inhabitant of another state. The tax, therefore, is simply a charge upon the particular property within the jurisdiction of the state whose statute imposes the tax. That the state where the property is situated can regulate the amount of the tax to be imposed by the character of the gifts made by the will is immaterial. Its statute has no extraterritorial power, and cannot regulate the administration of the estate and the distribution of the property in the state of the testator's domicile.

Our decision is that the amount paid by the executors on account of the inheritance tax imposed by the Massachusetts law, in order to get possession of the assets of the estate, cannot be deducted by the executors from the amount of the pecuniary legacies bequeathed by the testatrix, but that the same is a proper expense of administration, necessarily incurred by the executors in the performance of their duty in collecting and getting in the property belonging to the estate. The papers in the cause, with our decision certified thereon, are sent back to the superior court for Newport county, with direction to enter a decree dismissing the appeal and confirming the decree of the probate court.

(37 R. I. 227)

CALLAN v. PECK, Town Treasurer.
(No. 4732.)

(Supreme Court of Rhode Island. July 10, 1914.)

1. MUNICIPAL CORPORATIONS (§ 374*)-PUBLIC IMPROVEMENTS-CONTRACTS - REMEDIES OF CONTRACTOR-EVIDENCE.

In an action against a town treasurer for work and damages caused by the underdrain, with which plaintiff contracted to make a connection, being stopped up and letting out large quantities of water when tapped, a question as to what course plaintiff recommended with reference to the drain he was installing was properly excluded, and his evidencé confined to showing that the town's plans were improper.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. § 374.*]

2. TRIAL (8 45*)-EXCLUSION OF EVIDENCEOFFER OF PROOF.

An exception to the exclusion of a question will not avail because the answer would have shown a certain fact, where no offer of proof thereof was made.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 110-114; Dec. Dig. § 45.*] 3. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

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Under a contract with a town to lay sewers in accordance with the plans and directions made and "to be made," and that "new work shall be added when necessary, to leave all in

work if so decided by the engineer, where 240 additional feet of underdrain was found necessary to join the new work to the old and ordered constructed at the same rate, additional work and damage caused by the stoppage of the when tapped were extras within the contract, old drain and its overflowing the new work and had to be allowed by the engineer to be recoverable.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. § 360.*]

4. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

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Where one who contracted with a town to lay sewers and add new work to existing work ditional underdrain necessary to connect with when necessary was ordered to construct an adthe old work, the construction of the additional drain amounted merely to a modification of the original contract or a new contract on the to be allowed for by the engineer as extra work, same terms, and work performed thereon had as provided by the original contract; the payments for the additional drain having been made at the same rate and in accordance with the same routine as under the original contract, and the parties having treated the additional work the same as that performed under the original contract by deferring to the engineer's supervision, etc.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. § 360.*]

5. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

a town for a certain price was entitled to no furOne who agreed to lay an underdrain for ther compensation for work incident thereto, even if such work was much more than he anticipated.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 892, 8922; Dec. Dig. § 360.*]

6. MUNICIPAL CORPORATIONS (§ 360*)—PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

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One who laid sewers and underdrains for a town, under a contract clearly providing for what and how he should be paid, was strictly limited thereby, and could not recover for pumping, etc., caused by overflow, where the contract provided that he should do all pumping, etc., and that for all work and materials and all loss or damage he should receive only a stated sum.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. § 360.*]

7. MUNICIPAL CORPORATIONS (§ 360*)—PUB

CONTRACTS EXTRA

LIC IMPROVEMENTS WORK. One who contracted to lay sewers for a town could not recover for overflow from an old underdrain to which connection was being made, because of representations that it was a working drain, whereas it was stopped up, where the contract required him to do all pumping, and to accept a certain sum for all work and material, and all loss or damage.

[Ed. Note.-For other cases, see Municipal Dig. § 360.*1] Corporations, Cent. Dig. §§ 892, 8922; Dec.

8. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

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No recovery could be had for extra work 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

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Knowledge that unlooked for work was being done by one who contracted to lay sewers for a town did not create a promise to pay therefor.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. § 360.*]

10. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK.

A claim for extra work under a contract to lay sewers for a town, even if proper and the engineer's written allowance thereof had been waived, was subject to the conditions of the contract, which provided that the contractor should not be entitled to payment except in the manner therein set forth.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. 360.*]

11. MUNICIPAL CORPORATIONS (§ 354*)-PUBLIC IMPROVEMENTS-CONTRACTS-MODIFICATION.

The laying of an additional underdrain to connect that being laid for a town with the existing drains, by order of the commissioners fixing the price, was a modification or extension of the contract, which provided that additional work should be done when necessary to put the system in working order, though it provided that the engineer should order the same and fix the price, as it was ordered by the commissioners who may have consulted the engineer in fixing the price, and anyhow they could waive such provisions.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. § 354.*]

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14. MUNICIPAL CORPORATIONS (§ 354*)-PUBLIC IMPROVEMENTS-CONTRACTS-MISREPRE

SENTATION-RESCISSION.

While one could rescind his contract to construct sewers for a town and sue on a quantum meruit or ratify the contract and sue in deceit for damages, if there had been a fraudulent representation that the old underdrain which overflowed the new work when it was tapped was a working underdrain, whereas it was stopped up, he could not rescind, where misrepresentations made were innocent.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. § 354.*]

15. ASSUMPSIT, ACTION OF (§ 5*) - MUNICIPAL CORPORATION - DEFECTS IN DRAINS DAMAGES-NATURE OF REMEDY - COMMON

COUNTS.

The wrongful act of a town in opening up a clogged underdrain and pouring water in upon new work which was being constructed to connect with such drain would not render the town liable on the common counts in assumpsit on an implied contract to pay for pumping the water out and the damages resulting from letting it in; the remedy, if any, being in tort.

[Ed. Note.-For other cases, see Assumpsit, Action of, Cent. Dig. §§ 14-26; Dec. Dig. § 5.*]

Exceptions from Superior Court, Providence and Bristol Counties; Chester W. Barrows. Judge.

Action by Luke H. Callan against George H. Peck, as Town Treasurer of the town of Bristol. Nonsuit granted, and case transferred from the superior court on plaintiff's exceptions. Exceptions overruled, and case remitted for entry of judgment.

A. B. Crafts and William H. McSoley, both of Providence, for plaintiff. William T. O'Donnell, of Bristol, and Waterman & Greenlaw, of Providence, for defendant.

JOHNSON, C. J. This is an action of the case in assumpsit brought by Luke H. Callan, of Bristol, against the defendant, as

12. MUNICIPAL CORPORATIONS (§ 360*)-PUB-town treasurer of the town of Bristol. The LIC IMPROVEMENTS CONTRACTS EXTRA WORK. The construction of an additional underdrain to connect that being laid for a town with the old drains was not outside of the contract, which provided that additional work should be done when necessary, to be paid for as extra work, because it was not an incidental change made necessary during the progress of the work; it having been supposed that such drain was already in the ground, and its absence only being discovered after the work was begun.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 8922; Dec. Dig. § 360.*]

13. MUNICIPAL CORPORATIONS (§ 360*)-PUBLIC IMPROVEMENTS CONTRACTS EXTRA WORK. A provision in a contract with a town for the construction of sewers that the engineer could correct any errors or omissions when necessary to the proper fulfillment of the plans, authorized the ordering of an additional underdrain where it was supposed a connection could be made with the existing drains at a certain point, but it was found necessary to go 240 feet farther.

declaration contains a count on book account and certain common counts. No book account was introduced in evidence, but there was introduced in evidence a certain contract made by and between the plaintiff and the town of Bristol, and a notice to the town council relating to the claim that the plaintiff then made. The case was tried before his honor, Mr. Justice Barrows, and a jury on the 3d, 4th, and 5th days of December, 1913, and, the justice presiding having ruled out certain testimony, the plaintiff rested his case, and a nonsuit was thereupon granted. Thereafterwards he took the usual procedure to bring before this court certain exceptions, and he is now before this court upon his bill of exceptions as allowed by the trial justice.

From an examination of the bill of exceptions we think that most of the exceptions can be eliminated for the purposes of this [Ed. Note.-For other cases, see Municipal hearing, as they do not affect the question as Corporations, Cent. Dig. §§ 892, 8922; Dec. to whether or not the nonsuit was properly Dig. § 360.*]

granted.

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

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