Page images
PDF
EPUB

lowing and paying. No percentage of this con- , terials, or to the interpretation of the plans tract was withheld for a certain time, as re- or specifications bearing on the work, to be quired by the main contract," etc.

submitted under the contract to the engineer, That the Woodlawn avenue extension was but he fails to note in that paragraph the not ordered by the engineer in writing is provision: true, but it was ordered by the commission,

"And he [the engineer] shall have the right and was new work necessary to put the sys- to correct any errors or omissions therein when tem in working order, and hence was to be such corrections are necessary to the proper fultreated as an extra or as a modification or or plans, the action of such corrections to date

fillment of the intention of said specifications extension of the existing contract.

from the time the engineer gives due notice It is true there is testimony that the plain-thereof." tiff agreed upon a certain price with th

He claims, as the contract merely covers a commission, but there is no testimony that sewer running northerly from Woodlawn the commission did not consult Mr. Gray, avenue, that the plans cannot be corrected and that Mr. Gray did not fix the price. But, so as to include a sewer or underdrain on if he didn't, the commission could waive that Woodlawn avenue to Wood street. If the provision. But in every other detail the purpose of the contract was merely to have original contract was followed literally. Mr. a disconnected portion of a sewer, there Callan never rendered any bill for it, but re- might possibly be some foundation for his arceived his pay in the regular routine; i. e., gument, but to have a piece of a sewer, withit came along with the payments on the rest out any outlet, or to have several disconnectof the job, on the contract. As the trial jus- ed underdrains, cannot be conceived of as betice said:

ing within the understanding of the parties. “The evidence has shown on Mr. Callan's tes. The purpose of the contract was to have a timony that he got his payments along in regu: sewerage system for the town of Bristol, not lar course, including payments for some of these items which now appear in his declaration to have several disconnected sewers or sevunder what counsel have referred to as a bill eral disconnected underdrains, and conseof particulars."

quently, when it was found that there was [12] The plaintiff claims in his brief that no connection at the point where it was supthe construction of this 240 feet of under- posed

posed there was a connection, a short drain was not an incidental change made amount of extra pipe had to be added to necessary in the progress of the work; that make that connection. It is not like adding it was necessary before the work commenced a dozen or more side streets. While Woodand at the place of beginning.

lawn avenue is a side street, it furnished the We do not think it has to be an incidental only connection that there was between that change made necessary during the progress portion of the sewer that Mr. Callan was of the work. As a matter of fact, it appears building and Wood street. That section of that the necessity for it was discovered after the sewer needed an outlet onto Wood the work was begun. The plaintiff was re- street, and so that was a part of the work quired to make a sewer in accordance with that was necessary. If there was any displans and directions made and to be made pute as to the necessity for that, that was from time to time. The contract also pro- for the engineer to pass upon. vided that new work should be added, when The provision as to the order for extra necessary, to leave all in good working order. work being in writing, may, of course, be This work was added to the work originally waived by the commission. Furthermore, it specified, and the plaintiff was bound, under is provided that new work was to be added, his contract, to do that work. It is not nec- when necessary, to leave all in good working essary to bring this within the clause that order, and therefore such new work is not the engineer might make any changes in the required to be in writing, but the new work forms, dimensions, grades, alignments, or ma- is to be paid for as extra work. The comterials of the work, provided such changes mission ordered the new work, and it would do not materially affect the amount or value have to be paid for in that way, unless that of the work to be done, but, if it was neces- provision of the contract was waived. He sary to do this, that clause is broad enough says that the price agreed upon for the layto cover this work. The failure to get the ing of the pipe was the same as for laying engineer's written order, unless waived by other similar pipe. If that was so, there the commission, would merely prevent the would not have to be a special valuation by plaintiff's recovery.

the engineer, but the contract would be modWe think, however, that the other portions ified to that extent. That it was treated as of the contract are the portions that author- in the nature of extra work is shown by the ize this change, and, even if it did not come bill rendered, which includes work done on within any provision of the contract, that the Woodlawn avenue, three days' digging of the contract was so modified as to include the trench, and other things of that nature. additional work.

It is clear that that agreement simply af[13] Plaintiff further says that it was not fected changes that were made in the cuna dispute in relation to execution, construc-tract, and nothing else. For eight-inch untion, or completion of the work, or a dispute derdrains, he was to get 30 cents per linear as to the quality or quantity of work or ma- foot, but he was authorized to put in an

[ocr errors]

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 The court furthermore decided that if the in the contract, although such authorization plaintiff had any right at all to recover on is contained therein. But any contract can the last theory advanced by him, that there be modified by mutual agreement of the par- was no implied assumpsit; that the plainties.

tiff's remedy would be in case for tort. The plaintiff says that the provision that The plaintiff further says that the town the engineer shall have the right to correct did not agree that the work done was extra any errors or omissions therein when such work. There is no support for this in the corrections are necessary to the proper ful- testimony. The town admits that the work, fillment of the intention of said specifica- so far as covered by the contract, was extra tions or plans does not apply, because here work, and such allowance therefor was the intention was to build a sewer northerly. made as it was thought should be made.

But it was also the intention to have that [14] If there had been a fraudulent missewer and the underdrain connected with the representation as to the underdrain in Wood main sewer on Wood street, running from street, and this had been a material misrepnorth to south, but flowing southerly. It was resentation, and had induced the contract, supposed that this connection could be made the plaintiff could rescind the contract after where this sewer, running northerly, struck the discovery thereof, and sue on a quantum Woodlawn avenue. It was found out that meruit, or he could ratify the contract and this was an error, and that the sewer and its sue in deceit for damages. In this case, underdrain would have to be continued 240 however, whatever misrepresentation, if any feet to the corner of Wood street and Wood- there was, was an innocent one, and not of lawn avenue to make this connection.

such a character as to permit a rescission of Plaintiff attempts to make the situation as the contract. 9 Cyc. 408. Even if rescission if the commission had employed a third per- could have been had, the plaintiff did not reson to dig the underdrain to Wood street, scind, but elected to affirm, the contract. and, as a result, the water had been turned

[15] The plaintiff finally abandoned his upon the plaintiff. If such a thing as that claim as to a mistake in the inducement of had occurred, and there was a provision in either contract, and rested his claim solely the contract for the payment of any extra on the wrongful act of the town in opening work that was necessitated in the doing of up a drain on Wood street and pouring water the work, and that payments should only be in upon him. There is no testimony that the made in one way, that would be the limit of town did this. Further, this would not renthe plaintiff's right to recover, and, if it der the town liable on the common counts in was not the limit of his right to recover, then assumpsit on an implied contract to pay for he would have to recover as for a tort rath- pumping the water out and the damages reer than upon an implied contract.

sulting from letting the water in. The plainIn this case plaintiff seeks to recover the tiff's remedy, if any, would be for a tort. entire amount authorized by the contract and Webster v. Drinkwater, 5 Greenl. (Me.) 319, its amendment or modification, besides all | 17 Am. Dec. 238; Tightmeyer v. Mongold, 20 extras that the engineer will allow, and then Kan. 90; Fanson v. Linsley, 20 Kan. 235; bring suit for such work as the engineer re- Carson River Lumbering Co. v. Bassett, 2 fuses to allow. The plaintiff admits that he Nev. 249. went on with the work under the immediate The cases cited by plaintiff's counsel in supervision of the engineer and his assist their brief are all distinguishable from the ants and of the commission. If he did not case at bar. · consider that this work was included in The nonsuit was properly granted. some way under the written contract, why The plaintiff's exceptions are overruled, did he go on with the work under the super- and the case is remitted to the superior court vision of the engineer and his assistants? for the entry of judgment upon the nonsuit.

(37 R. I. 1)

shall proceed by or against the survivors. SPRAGUE v. STEVENS et al. (No. 279.) Chapter 329, § 14, provides that no action for

dower shall abate by the death of the defend(Supreme Court of Rhode Island. July 6, ant, where he is a tenant of the freehold, if 1914.)

the property passes by devise or descent from 1. LIS PENDENS ($ 24*) – PURCHASERS PEN- him, but, such death being suggested, the heir DENTE LITE-COMMON-LAW RIGHTS.

or devisee shall be summoned, and the suit shall In the absence of statute, a purchaser of proceed against him. Chapter

289, § 11, proreal property pending suit in which the title is vides for entering on the record the decease of involved takes subject to the judgment or de

any party, and for bringing in by order the cree that may be passed therein against his heirs and others interested. Held that, where a vendor.

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. $8 38-40, 42-46; Dec. Dig. § 24.*] the fact that chapter 329, § 15, provides that 2. QUIETING TITLE ($ 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 ant's consent.

them, and, being entitled to proceed against [Ed. Note.-For other cases, see Quieting the remainder, the effect of a failure to join Title, Cent. Dig. $$ 64-66; Dec. Dig. § 30.*] is only to eliminate the parcel owned by the 3. LIS PENDENS ($ 24*)-PURCHASERS PEN-l in the suit.

deceased defendant from further consideration DENTE LITE-RIGHTS-STATUTES. Gen. Laws 1909, c. 294, § 13, provides that cent. Dig. $$ 267–276; Dec. Dig. § 76.*]

[Ed. Note.-For other cases, see Dower, no decree concerning the title to real property shall affect such title, excepting as to par- 6. EQUITY (8 94*)-PARTIES_JOINDER. ties thereto, their heirs and devisees, and those The rule that all persons legally or benehaving actual notice thereof, as to any rights ficially interested in the subject-matter of a acquired before notice of the filing or entry of suit in equity must be made parties is subject the same shall be recorded in the records of to the exception that, if the object of the suit land evidence in the town or city where the can be accomplished and justice done, as bereal estate is situated. Held that, under suchtween the parties to the suit, without injustice statute, purchasers pendente lite with actual to others, the suit may proceed without joinnotice take cum onere, and are therefore not der of omitted parties; but, if complete jusnecessary parties to the suit, and purchasers tice between the parties before the court canpendente lite prior to the recording of the req- not be done without others being made parties, uisite notice, and not having actual notice, can- whose rights or interests will be prejudiced by not be affected thereby; and hence making a decree, then proceedings will be stayed, even them parties would serve no useful purpose. though such other parties cannot be brought in.

[Ed. Note. For other cases, see Lis Pen [Ed. Note. For other cases, see Equity, dens, Cent. Dig. $8 38-40, 42-46; Dec. Dig. 8 Cent. Dig. $8 246, 252; Dec. Dig. & 94.*] 24.*1

7. DOWER ($ 76*)-PARTIES-EQUITY RULES4. DOWER ($ 76*)-RECOVERY-DOWER IN SEV APPLICATION.

ERAL PARCELS-JOINDER IN SINGLE ACTION Equity rule 14 provides that, in all cases -EFFECT.

where it shall appear that parties who might The statute providing for the recovery of otherwise be deemed necessary or proper pardower (Gen. Laws 1909, c. 329, § 15) declares ties to the suit cannot be made parties by reathat, whenever a widow shall be entitled to son of their being out of the jurisdiction, or by dower in several parcels of land, she may sue reason of other incapacity, the court, in its disin equity against all the persons owning the cretion, may proceed without making them parlands, and the court may cause her dower to be ties, in which case the decree shall be without assigned in one parcel or in contiguous parcels prejudice to their rights. Rule 15 declares out of the lands of the heirs at law or devisees that, when persons in interest are very numerof the deceased husband, or otherwise accord-ous, and, without manifest inconvenience and ing to equity, and may award the widow dam- oppressive delays, some of them cannot be ages for the detention of dower. Held, that brought in, the court, in its discretion, may such provision merely authorized a suit to re- proceed without making all of them parties, if cover dower against the different holders of it shall have sufficient parties before it to several parcels, which otherwise would have represent the adverse interests of plaintiff and been multifarious, and that her right to recov- defendant in the suit. Held, that such rules did er dower from the owners of the several par- not apply, in a suit by a widow to recover dowcels was not affected by the bringing of suit er out of several parcels of land conveyed to against all so as to merge the right to have various persons, in determining whether, on dower out of each parcel into one right, re- the death of parties defendant or the alienacoverable against all or none, and require the tion of their lands during suit, the heirs, or devwidow, after having begun such suit, to keep all isees and the alienees should be made parpersons who might have acquired an interest ties, the determination of which question dein any of the several parcels as heir, devisee, pended, not on the number of such persons or or alienee of any defendant before the court the difficulty of joining them, but on whether until the suit was finally terminated.

they were necessary parties without whose [Ed. Note. For other cases, see Dower, presence the court could not proceed to a deCent. Dig. $8 267-276; Dec. Dig. $ 76.*]

cree. 5. DoWER ($_76*) - PARTIES - DEATH OF DE- Cent. Dig. 88 267–276; Dec. Dig. § 76.*]

[Ed. Note.-For other cases, see Dower, FENDANT-JOINDER OF HEIRS.

Gen. Laws 1909, c. 285, § 5, provides that, Case Certified from Superior Court, Proviwhere there are two or more plaintiffs or de-dence and Bristol Counties. fendants, and one dies, and the cause of action survives, the writ shall not abate, but, the

Action by Harriet B. Sprague against death being suggested on the record, the action 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

ed questions from the superior court under of such deceased person whose death has been General Laws 1909, c. 289, § 36.

suggested on the record respondents, before the See, also, 32 R. I. 361, 79 Atl. 972.

case can proceed?

“(5) In this case, where the parties in interNathan W. Littlefield, Walter R. Stiness, est are very numerous, if it shall appear that John H. Slattery, and Waterman & Green- without manifest inconvenience and oppressive

delays the heirs at law or devisees of deceased law, all of Providence (Charles E. Tilley, parties cannot be brought before the court, and of Providence, of counsel), for complainant. | if any such deceased person was the owner of Mumford, Huddy & Emerson, Tillinghast &a tract of land which is a part of a larger tract Collins, and Gardner, Pirce & Thornley, all which larger tract has been divided into parcels

of land described in the complainant's bill, of Providence (William W. Moss, of Provi- and conveyed to divers parties, and owners of dence, of counsel), for respondents.

certain of said parcels are parties to the suit

and represented before the court, is it necesThis is an action in at law or devisees of such deceased person whose

sary for the complainant to make the heirs JOHNSON, C. J. equity by Harriet B. Sprague to recover of death has been suggested on the record respondsome 800 respondents dower alleged to be due ente) Pinta case where the parties in interest her in certain lands alleged to have been owned by her husband during her marriage. convenience and oppressive delays the heirs at

are very numerous, and without manifest inSince the matter was last before this court, law or devisees of deceased parties cannot be the bill has been amended, the different brought before the court, is it necessary for the parties in interest have answered, and the complainant to make the heirs at law or dev

isees of a deceased person whose death has not bill has been referred to a master in chancery been suggested on the record respondents, beto decide certain questions in the case. fore the case can proceed, if said deceased per

At one of the hearings before said master son was the owner of a part of one of the the death of one of the respondents was suger owners of which tract are parties to the

tracts described in the complainant's bill, othgested upon the record, and thereupon the suit represented before the court? question arose whether or not the heirs at "(7) In this case, where the parties in inlaw or devisees of the said deceased respond- terest are very numerous, if it shall appear

that without manifest inconvenience and opent should be made parties to the bill before pressive delays the heirs at law or devisees the matter proceeded. Thereupon the mas- of deceased parties cannot be brought before ter filed a request to the superior court for the court, and if any such deceased person was

the owner of a part of one of the tracts of land instructions upon certain questions. Upon described in the complainant's bill, other owners hearing, the presiding justice, considering that of which tract are parties to the suit reprethe questions submitted are of such doubt sented before the court, is it necessary for the and importance and so affect the merits of complainant to make the heirs at law or devithe controversy that they ought to be de- not been suggested on the record respondents,

sees of such deceased person whose death has termined by the Supreme Court before fur- before the case can proceed? ther proceedings, certified said questions to “(8) In this case, where the parties in inthis court.

terest are very numerous, if it shall appear

that without manifest inconvenience and opThe questions are:

pressive delays the heirs at law or devisees "(1) In case the death of any party respondent of deceased parties cannot be brought before the is suggested on the record, is it necessary for court, and if any such deceased person was the the complainant to make the heirs at law or owner of a tract of land which is a part of devisees of said deceased person respondents, a larger tract of land described in the complainbefore the case can proceed?

ant's bill, which larger tract has been divided "(2) In case the death of any party respond- into parcels and conveyed to divers parties, and ent occurs which is not suggested on the rec- owners of certain of said parcels are parties to ord, is it necessary for the complainant to see the suit and represented before the court, is it that such death is suggested on the record, and necessary for the complainant to make the heirs to make the heirs at law or devisees of said at law or devisees of such deceased person whose deceased person respondents before the case can death has not been suggested on the records reproceed?

spondents, before the case can proceed? "(3) In a case where the parties in interest "(9) In case of the alienation by any of the are very numerous, and without manifest in- parties respondent hereto of any part of a tract convenience and oppressive delays the heirs of land in which dower is claimed, is it necesat law or devisees of deceased parties cannot sary to make the alienees of said 'land parties be brought before the court, is it necessary respondent, no notice of pending suit having for the complainant to make the heirs at law been placed upon record on the records of or devisees of such deceased person whose death land evidence in the towns where such land has been suggested on the record respondents, lies respectively, in a case where the parties before the case can proceed, if said deceased in interest are very numerous, and without person was the owner of a part of one of the manifest inconvenience and oppressive delays tracts of land described in the complainant's such transferees cannot be brought before the bill, other owners of which tract are parties to court, and if the party respondent alienating the suit and represented before the court?

his land was before its alienation the owner "(4) In this case, where the parties in inter- of a part of one of the tracts of land described est are very numerous, if it shall appear that in complainant's bill, other owners of which without manifest inconvenience and oppressive said tract are represented before the court? delays the heirs at law or devisees of deceased "(10) In case of the alienation by any of the parties cannot be brought before the court, and parties respondent hereto of any part of a if any such deceased person was the owner of tract of land in which dower is claimed, is it a part of one of the tracts of land described in necessary to make the alienees of said land the complainant's bill, other owners of which parties respondent, no notice of pending suit tract are parties to the suit and represented having been placed upon record on the records before the court, is it necessary for the com- of land evidence in the towns where such land plainant to make the heirs at law or devisees lies respectively, in this case, where the parties

in interest are very numerous, if it shall appears 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 “(11) In case of the alienation by any of interests of the plaintiffs and the defendants the parties respondent hereto of any part of the in the suit. But in such cases the decree shall tract of land in which dower is claimed, is it be without prejudice to the rights and claims necessary to make the alienees of said land of all persons not parties to the suit.” parties respondent, no notice of pending suit having been placed upon record on the records

Counsel for respondents contend that it is of land evidence in the towns where such land necessary that all the owners of the land out lies respectively, in this case, where the parties of which dower is sought should be parties in interest are very numerous, if it shall ap; to the suit at all stages of the proceeding; pear that without manifest inconvenience and oppressive delays such transferees cannot be that such requirement necessarily follows brought before the court, and if the party re- from the statute which provides that: spondent alienating his land was before its alien

"Whenever a widow shall be entitled to dower ation the owner of a tract of land which is a in several parcels of land, whether the fee to part of a larger tract of land described in the the same be in the heir at law, devisee, grantee, complainant's bill, which larger tract has been or a subsequent holder, she may bring a suit divided into parcels and conveyed to divers par- in equity against all of the persons owning the ties, and owners of certain of said parcels are said land." parties to the suit and represented before the court?

Counsel argue that: “(12) Under questions 4, 5, 7, 8, 10, and 11, "It would seem to make no difference whethis the master authorized to decide in each in-er the death was suggested upon the record or stance whether such manifest inconvenience and

not. If the death is suggested upon the recoppressive delays exist?

ord, of course the heirs at law or devisees can *(13) Does rule 15 of the rules in equity of be at once summoned in, and it would seem to the superior court apply in any or all of the be the duty of the complainant to see that above cases ? "(14) Does rule 14 of the rules in equity of isees were summoned in.

when any parties die their heirs at law or devthe superior court apply in any or all of the

“It would appear to be the plain intent of the above cases? "(15) If so, can the master appointed to de- even where the separate tracts are each de

statute that this procedure should be followed cide the question of dower in this suit apply scribed separately, and the owners of each tract said rules in any particular case without specific brought in as such. But in a case like that instructions from the court?"

at bar, where the land is described simply by For consideration the questions may, we ancient deeds which describe the land as it think, be grouped as follows:

was long ago, and where the lands thus de

scribed have been subdivided and again subFirst. In case of the death of a party re- divided, and it is sought to join the owners of spondent, is it necessary for the complain- all such lands, the cause cannot proceed withant to make the heirs at law or devisees of out having the owners of all the land continusaid de eased respondent parties to the suit, ously before the court.” before the case can proceed, (a) where the [1] So far as the questions pertain to the death is suggested upon the record, (b) where necessity of making the alienees of parties the death has not been so suggested? respondent parties to the suit, before the

Second. In case of the alienation by any suit can proceed, the rule as to the relation of the parties respondent of any part of a of such alienees to the suit, in the absence tract of land in which dower is claimed, is of statute, is well stated in Brightman v. it necessary to make the alienee a party re- Brightman, 1 R. I. 112. At page 119, the spondent, no notice of pending suit having court, Staples, J., says: been placed upon record in the records of “We apprehend it is well settled that he who land evidence of the town where such land purchases property pending a suit in which the lies?

title to it is involved takes it subject to the

judgment or decree that may be passed in such Third. How are the questions affected by suit against the person from whom he purchases. the great number of parties and the possible That he purchased bona fide, and paid a full inconvenience and delay resulting therefrom? consideration for it, will not avail against such

judgment or decree. Nor will he be permitted Fourth. Instructions are also sought as to prove that he had no notice of the pendency to the duty and authority of the master to of the suit. The law infers that all persons decide questions of inconvenience and delay, have notice of the proceedings of courts of recand of the applicability of equity rules 14 of public policy. Without

it, the effect of every

ord. This rule has been adopted from motives and 15 of the superior court to this case, judgment and decree of this nature might be and the duties of the master under those avoided by a mere transfer of the defendant's rules. The rules are as follows:

title, as a decree of judgment was about to “(14) In all cases where it shall appear to A party might always be in pursuit of his

be pronounced against him. 11 Ves. R. 197. the court that persons who might otherwise be deemed necessary or proper parties to the suit rights without being able to overtake them.” cannot be made parties by reason of their being See, also, Bishop of Winchester v. Paine, out of the jurisdiction of the court, or are in- 11 Ves. Jr. 194, 197; Sorrell v. Carpenter, 2 capable otherwise of being made parties, the court may, in its discretion, proceed in the Peere Williams, 482; Metcalfe v. Pulvertoft, cause without making such persons parties; 2 Ves. & Beames, 200; Murray v. Lylburn, 2

« ՆախորդըՇարունակել »