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lowing and paying. No percentage of this contract was withheld for a certain time, as required by the main contract," etc.

That the Woodlawn avenue extension was not ordered by the engineer in writing is true, but it was ordered by the commission, and was new work necessary to put the system in working order, and hence was to be treated as an extra or as a modification or extension of the existing contract.

It is true there is testimony that the plaintiff agreed upon a certain price with the commission, but there is no testimony that the commission did not consult Mr. Gray, and that Mr. Gray did not fix the price. But, if he didn't, the commission could waive that provision. But in every other detail the original contract was followed literally. Mr. Callan never rendered any bill for it, but received his pay in the regular routine; i. e., it came along with the payments on the rest of the job, on the contract. As the trial justice said:

"The evidence has shown on Mr. Callan's testimony that he got his payments along in regular course, including payments for some of these items which now appear in his declaration under what counsel have referred to as a bill of particulars."

[12] The plaintiff claims in his brief that the construction of this 240 feet of underdrain was not an incidental change made necessary in the progress of the work; that it was necessary before the work commenced and at the place of beginning.

We do not think it has to be an incidental change made necessary during the progress of the work. As a matter of fact, it appears that the necessity for it was discovered after the work was begun. The plaintiff was required to make a sewer in accordance with plans and directions made and to be made from time to time. The contract also provided that new work should be added, when necessary, to leave all in good working order. This work was added to the work originally specified, and the plaintiff was bound, under his contract, to do that work. It is not necessary to bring this within the clause that the engineer might make any changes in the forms, dimensions, grades, alignments, or materials of the work, provided such changes do not materially affect the amount or value of the work to be done, but, if it was necessary to do this, that clause is broad enough to cover this work. The failure to get the engineer's written order, unless waived by the commission, would merely prevent the plaintiff's recovery.

We think, however, that the other portions of the contract are the portions that authorize this change, and, even if it did not come within any provision of the contract, that the contract was so modified as to include the additional work.

[13] Plaintiff further says that it was not a dispute in relation to execution, construction, or completion of the work, or a dispute as to the quality or quantity of work or ma

terials, or to the interpretation of the plans or specifications bearing on the work, to be submitted under the contract to the engineer, but he fails to note in that paragraph the provision:

"And he [the engineer] shall have the right to correct any errors or omissions therein when such corrections are necessary to the proper fulor plans, the action of such corrections to date fillment of the intention of said specifications from the time the engineer gives due notice thereof."

He claims, as the contract merely covers a sewer running northerly from Woodlawn avenue, that the plans cannot be corrected so as to include a sewer or underdrain on Woodlawn avenue to Wood street. If the purpose of the contract was merely to have a disconnected portion of a sewer, there might possibly be some foundation for his argument, but to have a piece of a sewer, without any outlet, or to have several disconnected underdrains, cannot be conceived of as being within the understanding of the parties. The purpose of the contract was to have a sewerage system for the town of Bristol, not to have several disconnected sewers or several disconnected underdrains, and consequently, when it was found that there was no connection at the point where it was supposed there was a connection, a short amount of extra pipe had to be added to make that connection. It is not like adding a dozen or more side streets. While Woodlawn avenue is a side street, it furnished the only connection that there was between that portion of the sewer that Mr. Callan was building and Wood street. That section of the sewer needed an outlet outlet onto Wood street, and so that was a part of the work that was necessary. If there was any dispute as to the necessity for that, that was for the engineer to pass upon.

The provision as to the order for extra work being in writing, may, of course, be waived by the commission. Furthermore, it is provided that new work was to be added, when necessary, to leave all in good working order, and therefore such new work is not required to be in writing, but the new work is to be paid for as extra work. The commission ordered the new work, and it would have to be paid for in that way, unless that provision of the contract was waived. He says that the price agreed upon for the laying of the pipe was the same as for laying other similar pipe. If that was so, there would not have to be a special valuation by the engineer, but the contract would be modified to that extent. That it was treated as in the nature of extra work is shown by the bill rendered, which includes work done on Woodlawn avenue, three days' digging of the trench, and other things of that nature.

It is clear that that agreement simply affected changes that were made in the contract, and nothing else. For eight-inch underdrains, he was to get 30 cents per linear foot, but he was authorized to put in an

eight-inch sewer pipe to be used as an un- The authority of the engineer and his assistderdrain, and for this he was to get the price ants was fixed and limited by the contract. of that; namely, 65 cents a foot. All the The court did not grant a nonsuit because other charges and provisions were to be the the plaintiff failed to submit his extra chargsame as in the old contract, and consequent-es to the engineer, but because, in the court's ly no changes had to be made. Assuming opinion, he was at all times acting under that it was a new contract, and was made the original contract, as modified, and his such by the parties, instead of its being or- claim for extra work was subject to all the dered as extra work by the engineer, that conditions of that original contract; namely, would not prevent it from being merely a approval by the engineer of the doing of the modification of the original contract and be- work, fixing of the price by the engineer, and ing subject to all the terms and provisions of all those elements of the original contract. 'the original contract, and to make that This approval the plaintiff did not have. change would not require any authorization in the contract, although such authorization is contained therein. But any contract can be modified by mutual agreement of the parties.

The plaintiff says that the provision that the engineer shall have the right to correct any errors or omissions therein when such corrections are necessary to the proper fulfillment of the intention of said specifications or plans does not apply, because here the intention was to build a sewer northerly. But it was also the intention to have that sewer and the underdrain connected with the main sewer on Wood street, running from north to south, but flowing southerly. It was supposed that this connection could be made where this sewer, running northerly, struck Woodlawn avenue. It was found out that this was an error, and that the sewer and its underdrain would have to be continued 240 feet to the corner of Wood street and Woodlawn avenue to make this connection.

Plaintiff attempts to make the situation as if the commission had employed a third person to dig the underdrain to Wood street, and, as a result, the water had been turned upon the plaintiff. If such a thing as that had occurred, and there was a provision in the contract for the payment of any extra work that was necessitated in the doing of the work, and that payments should only be made in one way, that would be the limit of the plaintiff's right to recover, and, if it was not the limit of his right to recover, then he would have to recover as for a tort rather than upon an implied contract.

In this case plaintiff seeks to recover the entire amount authorized by the contract and its amendment or modification, besides all extras that the engineer will allow, and then bring suit for such work as the engineer refuses to allow. The plaintiff admits that he went on with the work under the immediate supervision of the engineer and his assistants and of the commission. If he did not consider that this work was included in some way under the written contract, why did he go on with the work under the supervision of the engineer and his assistants?

The court furthermore decided that if the plaintiff had any right at all to recover on the last theory advanced by him, that there was no implied assumpsit; that the plaintiff's remedy would be in case for tort.

The plaintiff further says that the town did not agree that the work done was extra work. There is no support for this in the testimony. The town admits that the work, so far as covered by the contract, was extra work, and such allowance therefor was made as it was thought should be made.

[14] If there had been a fraudulent misrepresentation as to the underdrain in Wood street, and this had been a material misrepresentation, and had induced the contract, the plaintiff could rescind the contract after the discovery thereof, and sue on a quantum meruit, or he could ratify the contract and sue in deceit for damages. In this case, however, whatever misrepresentation, if any there was, was an innocent one, and not of such a character as to permit a rescission of the contract. 9 Cyc. 408. Even if rescission could have been had, the plaintiff did not rescind, but elected to affirm, the contract.

[15] The plaintiff finally abandoned his claim as to a mistake in the inducement of either contract, and rested his claim solely on the wrongful act of the town in opening up a drain on Wood street and pouring water in upon him. There is no testimony that the town did this. Further, this 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 the water in. The plaintiff's remedy, if any, would be for a tort. Webster v. Drinkwater, 5 Greenl. (Me.) 319, 17 Am. Dec. 238; Tightmeyer v. Mongold, 20 Kan. 90; Fanson v. Linsley, 20 Kan. 235; Carson River Lumbering Co. v. Bassett, 2 Nev. 249.

The cases cited by plaintiff's counsel in their brief are all distinguishable from the case at bar. ·

The nonsuit was properly granted.

The plaintiff's exceptions are overruled, and the case is remitted to the superior court for the entry of judgment upon the nonsuit.

(37 R. I. 1)

SPRAGUE v. STEVENS et al. (No. 279.) (Supreme Court of Rhode Island. July 6, 1914.)

1. LIS PENDENS (§ 24*) - PURCHASERS PEN

DENTE LITE-COMMON-LAW RIGHTS. In the absence of statute, a purchaser of real property pending suit in which the title is involved takes subject to the judgment or decree that may be passed therein against his

vendor.

shall proceed by or against the survivors. Chapter 329, § 14, provides that no action for dower shall abate by the death of the defendant, where he is a tenant of the freehold, if the property passes by devise or descent from him, but, such death being suggested, the heir or devisee shall be summoned, and the suit shall proceed against him. Chapter 289, § 11, provides for entering on the record the decease of any party, and for bringing in by order the heirs and others interested. Held that, where a suit to recover dower is brought against the [Ed. Note.-For other cases, see Lis Pendens, the death of one of the defendants is suggested, several owners of separate parcels of land, and Cent. Dig. §§ 38-40, 42-46; Dec. Dig. § 24.*1 the fact that chapter 329, § 15, provides that 2. QUIETING TITLE (§ 30*) — PARTIES - PUR- in such suit the court may cause dower in all CHASERS PENDENTE LITE. the parcels to be assigned in one parcel or In a suit involving the title to real prop-in contiguous parcels out of the lands of all the erty, it is proper to make parties all in- defendants does not make the other defendants cumbrancers whose claims arose before the "parties interested" in having the heirs or devcommencement of the suit; but purchasers pen- isees of the deceased defendant made parties dente lite cannot be parties without complain- to the suit, nor is complainant required to join them, and, being entitled to proceed against the remainder, the effect of a failure to join is only to eliminate the parcel owned by the deceased defendant from further consideration in the suit.

ant's consent.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 64-66; Dec. Dig. § 30.*] 3. LIS PENDENS (§ 24*)-PURCHASERS PENDENTE LITE-RIGHTS-STATUTES.

Gen. Laws 1909, c. 294, § 13, provides that no decree concerning the title to real property shall affect such title, excepting as to parties thereto, their heirs and devisees, and those having actual notice thereof, as to any rights acquired before notice of the filing or entry of the same shall be recorded in the records of land evidence in the town or city where the real estate is situated. Held that, under such statute, purchasers pendente lite with actual notice take cum onere, and are therefore not necessary parties to the suit, and purchasers pendente lite prior to the recording of the requisite notice, and not having actual notice, cannot be affected thereby; and hence making them parties would serve no useful purpose.

[Ed. Note.-For other cases, see Lis Pendens, Cent. Dig. §§ 38-40, 42-46; Dec. Dig. § 24.*]

4. DowER (8 76*)-RECOVERY-DOWER IN SEVERAL PARCELS-JOINDER IN SINGLE ACTION -EFFECT.

The statute providing for the recovery of dower (Gen. Laws 1909, c. 329, § 15) declares that, whenever a widow shall be entitled to dower in several parcels of land, she may sue in equity against all the persons owning the lands, and the court may cause her dower to be assigned in one parcel or in contiguous parcels out of the lands of the heirs at law or devisees of the deceased husband, or otherwise according to equity, and may award the widow damages for the detention of dower. Held, that such provision merely authorized a suit to recover dower against the different holders of several parcels, which otherwise would have been multifarious, and that her right to recover dower from the owners of the several parcels was not affected by the bringing of suit against all so as to merge the right to have dower out of each parcel into one right, recoverable against all or none, and require the widow, after having begun such suit, to keep all persons who might have acquired an interest in any of the several parcels as heir, devisee, or alienee of any defendant before the court until the suit was finally terminated.

[Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 267-276; Dec. Dig. § 76.*] 5. DOWER (§ 76*) - PARTIES-DEATH OF DE(§_76*) FENDANT-JOINDER OF HEIRS.

Gen. Laws 1909, c. 285, § 5, provides that, where there are two or more plaintiffs or defendants, and one dies, and the cause of action survives, the writ shall not abate, but, the death being suggested on the record, the action

Cent. Dig. §§ 267-276; Dec. Dig. § 76.*]
[Ed. Note.-For other cases, see Dower,
6. EQUITY (§ 94*)-PARTIES-JOINDER.
The rule that all persons legally or bene-
ficially interested in the subject-matter of a
suit in equity must be made parties is subject
to the exception that, if the object of the suit
can be accomplished and justice done, as be-
tween the parties to the suit, without injustice
to others, the suit may proceed without join-
der of omitted parties; but, if complete jus-
tice between the parties before the court can-
not be done without others being made parties,
whose rights or interests will be prejudiced by
a decree, then proceedings will be stayed, even
though such other parties cannot be brought in.

[Ed. Note.-For other cases, see Equity,
Cent. Dig. §§ 246, 252; Dec. Dig. § 94.*]
7. DOWER (§ 76*)-PARTIES-EQUITY RULES-
APPLICATION.

Equity rule 14 provides that, in all cases where it shall appear that parties who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction, or by reason of other incapacity, the court, in its discretion, may proceed without making them parties, in which case the decree shall be without prejudice to their rights. Rule 15 declares that, when persons in interest are very numerous, and, without manifest inconvenience and oppressive delays, some of them cannot be brought in, the court, in its discretion, may proceed without making all of them parties, if it shall have sufficient parties before it to represent the adverse interests of plaintiff and defendant in the suit. Held, that such rules did not apply, in a suit by a widow to recover dower out of several parcels of land conveyed to various persons, in determining whether, on the death of parties defendant or the alienation of their lands during suit, the heirs, or devisees and the alienees should be made parties, the determination of which question depended, not on the number of such persons or the difficulty of joining them, but on whether they were necessary parties without whose presence the court could not proceed to a de

cree.

Cent. Dig. §§ 267-276; Dec. Dig. § 76.*]
[Ed. Note.-For other cases, see Dower,

Case Certified from Superior Court, Providence and Bristol Counties.

Action by Harriet B. Sprague against Charles W. Stevens and others. On certifi

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

suggested on the record respondents, before the case can proceed?

ed questions from the superior court under of such deceased person whose death has been General Laws 1909, c. 289, § 36. See, also, 32 R. I. 361, 79 Atl. 972. Nathan W. Littlefield, Walter R. Stiness, John H. Slattery, and Waterman & Greenlaw, all of Providence (Charles E. Tilley, of Providence, of counsel), for complainant. Mumford, Huddy & Emerson, Tillinghast & Collins, and Gardner, Pirce & Thornley, all of Providence (William W. Moss, of Providence, of counsel), for respondents.

JOHNSON, C. J. This is an action in equity by Harriet B. Sprague to recover of some 800 respondents dower alleged to be due her in certain lands alleged to have been owned by her husband during her marriage. Since the matter was last before this court, the bill has been amended, the different parties in interest have answered, and the bill has been referred to a master in chancery to decide certain questions in the case.

At one of the hearings before said master the death of one of the respondents was suggested upon the record, and thereupon the question arose whether or not the heirs at law or devisees of the said deceased respondent should be made parties to the bill before the matter proceeded. Thereupon the master filed a request to the superior court for instructions upon certain questions. Upon hearing, the presiding justice, considering that the questions submitted are of such doubt and importance and so affect the merits of the controversy that they ought to be determined by the Supreme Court before further proceedings, certified said questions to this court.

The questions are:

"(1) In case the death of any party respondent is suggested on the record, is it necessary for the complainant to make the heirs at law or devisees of said deceased person respondents, before the case can proceed?

"(2) In case the death of any party respondent occurs which is not suggested on the record, is it necessary for the complainant to see that such death is suggested on the record, and to make the heirs at law or devisees of said deceased person respondents before the case can proceed?

"(3) In a case where the parties in interest are very numerous, and without manifest inconvenience and oppressive delays the heirs at law or devisees of deceased parties cannot be brought before the court, is it necessary for the complainant to make the heirs at law or devisees of such deceased person whose death has been suggested on the record respondents, before the case can proceed, if said deceased person was the owner of a part of one of the tracts of land described in the complainant's bill, other owners of which tract are parties to the suit and represented before the court?

"(4) In this case, where the parties in interest are very numerous, if it shall appear that without manifest inconvenience and oppressive delays the heirs at law or devisees of deceased parties cannot be brought before the court, and if any such deceased person was the owner of a part of one of the tracts of land described in the complainant's bill, other owners of which tract are parties to the suit and represented before the court, is it necessary for the complainant to make the heirs at law or devisees

"(5) In this case, where the parties in interest are very numerous, if it shall appear that delays the heirs at law or devisees of deceased without manifest inconvenience and oppressive parties cannot be brought before the court, and if any such deceased person was the owner of a tract of land which is a part of a larger tract which larger tract has been divided into parcels of land described in the complainant's bill, and conveyed to divers parties, and owners of certain of said parcels are parties to the suit and represented before the court, is it necessary for the complainant to make the heirs at law or devisees of such deceased person whose death has been suggested on the record respondents, before the case can proceed?

"(6) In a case where the parties in interest are very numerous, and without manifest inconvenience and oppressive delays the heirs at law or devisees of deceased parties cannot be brought before the court, is it necessary for the isees of a deceased person whose death has not complainant to make the heirs at law or devbeen suggested on the record respondents, before the case can proceed, if said deceased person was the owner of a part of one of the tracts described in the complainant's bill, other owners of which tract are parties to the suit represented before the court?

"(7) In this case, where the parties in interest are very numerous, if it shall appear that without manifest inconvenience and oppressive delays the heirs at law or devisees of deceased parties cannot be brought before the court, and if any such deceased person was the owner of a part of one of the tracts of land described in the complainant's bill, other owners of which tract are parties to the suit represented before the court, is it necessary for the complainant to make the heirs at law or devisees of such deceased person whose death has not been suggested on the record respondents, before the case can proceed?

"(8) In this case, where the parties in interest are very numerous, if it shall appear that without manifest inconvenience and oppressive delays the heirs at law or devisees of deceased parties cannot be brought before the court, and if any such deceased person was the owner of a tract of land which is a part of a larger tract of land described in the complainant's bill, which larger tract has been divided into parcels and conveyed to divers parties, and owners of certain of said parcels are parties to the suit and represented before the court, is it necessary for the complainant to make the heirs at law or devisees of such deceased person whose death has not been suggested on the records respondents, before the case can proceed?

"(9) In case of the alienation by any of the parties respondent hereto of any part of a tract of land in which dower is claimed, is it necessary to make the alienees of said land parties respondent, no notice of pending suit having been placed upon record on the records of land evidence in the towns where such land lies respectively, in a case where the parties in interest are very numerous, and without manifest inconvenience and oppressive delays such transferees cannot be brought before the court, and if the party respondent alienating his land was before its alienation the owner of a part of one of the tracts of land described in complainant's bill, other owners of which said tract are represented before the court?

"(10) In case of the alienation by any of the parties respondent hereto of any part of a tract of land in which dower is claimed, is it necessary to make the alienees of said land parties respondent, no notice of pending suit having been placed upon record on the records of land evidence in the towns where such land lies respectively, in this case, where the parties

in interest are very numerous, if it shall appear [ and in such cases the decree shall be without that without manifest inconvenience and oppres- prejudice to the rights of the absent parties. sive delays such transferees cannot be brought "(15) When the persons in interest are very before the court, and if the party respondent numerous, and without manifest inconvenience alienating his land was before its alienation the and oppressive delays in the suit some of them owner of a part of one of the tracts of land cannot be brought before the court, the court, in described in complainant's bill, other owners of its discretion, may proceed without making all which said tract are represented before the of said persons parties, if it shall have sufcourt? ficient parties before it to represent the adverse interests of the plaintiffs and the defendants in the suit. But in such cases the decree shall be without prejudice to the rights and claims of all persons not parties to the suit.'

"(11) In case of the alienation by any of the parties respondent hereto of any part of the tract of land in which dower is claimed, is it necessary to make the alienees of said land parties respondent, no notice of pending suit having been placed upon record on the records of land evidence in the towns where such land lies respectively, in this case, where the parties in interest are very numerous, if it shall ap; pear that without manifest inconvenience and oppressive delays such transferees cannot be brought before the court, and if the party respondent alienating his land was before its alienation the owner of a tract of land which is a part of a larger tract of land described in the complainant's bill, which larger tract has been divided into parcels and conveyed to divers parties, and owners of certain of said parcels are parties to the suit and represented before the court?

"(12) Under questions 4, 5, 7, 8, 10, and 11, is the master authorized, to decide in each instance whether such manifest inconvenience and oppressive delays exist?

(13) Does rule 15 of the rules in equity of the superior court apply in any or all of the above cases?

"(14) Does rule 14 of the rules in equity of the superior court apply in any or all of the above cases?

"(15) If so, can the master appointed to decide the question of dower in this suit apply said rules in any particular case without specific instructions from the court?"

For consideration the questions may, we think, be grouped as follows:

First. In case of the death of a party respondent, is it necessary for the complainant to make the heirs at law or devisees of said deceased respondent parties to the suit, before the case can proceed, (a) where the death is suggested upon the record, (b) where the death has not been so suggested?

Second. In case of the alienation by any of the parties respondent of any part of a tract of land in which dower is claimed, is it necessary to make the alienee a party respondent, no notice of pending suit having been placed upon record in the records of land evidence of the town where such land lies?

Third. How are the questions affected by the great number of parties and the possible inconvenience and delay resulting therefrom? Fourth. Instructions are also sought as to the duty and authority of the master to decide questions of inconvenience and delay, and of the applicability of equity rules 14 and 15 of the superior court to this case, and the duties of the master under those rules. The rules are as follows:

Counsel for respondents contend that it is necessary that all the owners of the land out of which dower is sought should be parties to the suit at all stages of the proceeding; that such requirement necessarily follows from the statute which provides that:

"Whenever a widow shall be entitled to dower in several parcels of land, whether the fee to the same be in the heir at law, devisee, grantee, or a subsequent holder, she may bring a suit in equity against all of the persons owning the said land."

Counsel argue that:

"It would seem to make no difference whether the death was suggested upon the record or not. If the death is suggested upon the record, of course the heirs at law or devisees can be at once summoned in, and it would seem to be the duty of the complainant to see that when any parties die their heirs at law or devisees were summoned in.

"It would appear to be the plain intent of the statute that this procedure should be followed even where the separate tracts are each described separately, and the owners of each tract brought in as such. But in a case like that at bar, where the land is described simply by ancient deeds which describe the land as it was long ago, and where the lands thus described have been subdivided and again subdivided, and it is sought to join the owners of all such lands, the cause cannot proceed without having the owners of all the land continuously before the court.'

[1] So far as the questions pertain to the necessity of making the alienees of parties respondent parties to the suit, before the suit can proceed, the rule as to the relation of such alienees to the suit, in the absence of statute, is well stated in Brightman v. Brightman, 1 R. I. 112. At page 119, the court, Staples, J., says:

"We apprehend it is well settled that he who purchases property pending a suit in which the title to it is involved takes it subject to the judgment or decree that may be passed in such suit against the person from whom he purchases. That he purchased bona fide, and paid a full consideration for it, will not avail against such judgment or decree. Nor will he be permitted to prove that he had no notice of the pendency of the suit. The law infers that all persons have notice of the proceedings of courts of recof public policy. Without it, the effect of every ord. This rule has been adopted from motives judgment and decree of this nature might be avoided by a mere transfer of the defendant's title, as a decree of judgment was about to A party might always be in pursuit of his be pronounced against him. 11 Ves. R. 197. rights without being able to overtake them." See, also, Bishop of Winchester v. Paine, Sorrell v. Carpenter, 2 Metcalfe v. Pulvertoft, Murray v. Lylburn, 2

"(14) In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or are in- 11 Ves. Jr. 194, 197; capable otherwise of being made parties, the court may, in its discretion, proceed in the Peere Williams, 482; without making such persons parties; 2 Ves. & Beames, 200;

cause

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