Merriam v. City of Meriden , 43 Conn. 173 ( 1875 )

Park, 0. J.

We tliink the court erred in rendering judgment for more than nominal damages in this case, and therefore a new trial must be advised.

It appears that the defendants, by their proper officers, laid out certain alterations to be made in North Colony Street, which was one of the public streets in the defendant city. The alterations required the taking of certain lands belonging to the plaintiff. The damages to the plaintiff resulting therefrom were duly appraised. The plaintiff was not satisfied with the amount awarded him, and entered an appeal. While the appeal was pending, the defendants and the plaintiff entered into an agreement in writing, to settle the matters in controversy between them pertaining to the appeal. In this agreement the defendants bound themselves to pay to the plaintiff the sum of sixteen hundred and fifty dollars in settlement of the appeal, and in consideration thereof the plaintiff agreed to withdraw his appeal when this sum should be paid. The agreement was signed by the parties on the 30tli day of May, 1873. Immediately thereafter the plaintiff left the city and state, and was absent till the 14th day of June following. In the meantime the defendants commenced making the excavations upon the plaintiff’s land, which were necessary for the alterations of the street contemplated by the agreement. The plaintiff on his return demanded of the defendants payment in cash of the sum named in the agreement. The defendants, by their common council, had previously passed a vote instructing their clerk to draw an order on their treasurer in favor of the plaintiff, for the sum of six hundred and fifty dollars, and further instructing their treasurer to give to the plaintiff a city note for the sum of one thousand dollars. In these circumstances the officers of the city on whom the demand was made, refused compliance with it, but two days thereafter the common council passed another vote to pay the plaintiff in cash the amount provided for in the agreement, whenever he should finish his part of the contract. On the refusal of the defendants to comply with the plaintiff’s demand, the plaintiff forbade their further prosecution of the work, but the defendants went on with it. The plaintiff has never been paid the amount provided for in the agreement, nor has he withdrawn his appeal.

These arc the principal facts of the case, and they are sufficient for our purpose.

The plaintiff insists that the defendants had no right under the agreement to enter upon his land to do the work provided for in it, before they had paid the sixteen hundred and fifty dollars. Ho considers the payment of this sum a pre-requisite to their right to enter upon the land. But there is nothing in the agreement which lays the foundation for this claim. No time is specified or alluded to when the money should be paid. It must bo paid before the plaintiff would bo bound to withdraw his appeal, but the withdrawal of the appeal has no connection with the commencement of the work. Suppose A should make a contract in writing with B that for the sum of fifty dollars B might build a house upon A’s land; and suppose that immediately after the signing of the contract A should leave the country, and be absent for six months, and on his return should find that B in his absence had constructed the foundation, and was building his house upon it, according to the agreement. Could A justly claim that the payment of the fifty dollars was a condition precedent to B’s right to commence the construction of his house, when no time was mentioned in the agreement when the fifty dollars should be paid? And could A rescind the contract and treat A as a trespasser for what had been done, if he should fail to' make immediate payment upon demand? We think not. The contract would be regarded as a license to B to enter upon the land of A which could not be revoked after B had made entry upon the land, and had partially constructed his house, in accordance with the agreement, simply because ho did not pay the money on demand. In such a case there would be no refusal by B to perform the agreement. The refusal would be to pay the money when demanded, and not an absolute refusal over to pay it. A court of equity would compel A to give a deed on payment of the fifty dollars, should a proper proceeding be brought for the purpose. So here, the defendants never refused to perform their agreement. The refusal was confined to paying the money when demanded. Neither was there any attempted rescission of the contract by the plaintiff. He forbade the defendants, it is true, to go on with the work before the money was paid. But he claimed then, as he does now, that the payment of the money was a condition precedent to the existence of a right to enter upon his land, because the payment of the money must precede the withdrawal of the appeal, and under the appeal the defendants would have no right to enter upon his land until the damages were paid. He contends that the defendants could have no greater rights under the contract than they would have had under the appeal, and that consequently the damages fixed by the contract must have been paid before a right to enter upon the land could come into existence.

There is fallacy in this argument. The contract is wholly independent of the appeal. It fixes the damages and provides a mode for taking the land different in every respect from that provided by the charter and recognized in the appeal. The contract refers to the appeal in order to show what matters it is dealing with and settling, and the provision that the payment of the money and the withdrawal of the appeal should be concurrent acts, was doubtless inserted so that if, for any cause, the contract should be abandoned by the parties, the plaintiff could then prosecute his appeal. It is clear that the contract makes no reference to the appeal for the purpose of making some of the provisions of the charter a part of the contract. The contract is entire of itself. When the damages provided by it are paid, the appeal will be settled, whether it is withdrawn or not. We are satisfied that there is no foundation for the claim that the contract makes the payment of the money a condition precedent to the right of the defendants to enter upon ihe plaintiff’s land.

But it is said that the contract confers upon the defendants no license to enter upon the land before the money is paid. This claim seems to be an amplification of the one we have considered, for if the payment of the money is not a condition precedent to the defendants’ right to enter upon the land, it is difficult to see why the views we have expressed do not fully answer it. We do not see why the contract does not import a license before the payment of the money as well as after. Indeed, in looking at this contract one would almost suppose that the defendants were under obligations to the plaintiff to enter upon the land and .perform the work. The contract says, “ the city of Meriden is to make the necessary excavation for a wall in front of the premises of said Merriam, including the foundation therefor, with all excavations for side-walk and steps, and the foundation therefor.” But it is unnecessary to pursue this claim, for it is based upon the same ground as the one considered, namely, that the payment of the money is a condition precedent to the defendants’ right or license to enter upon the plaintiff’s land. When the money is paid, the right is conceded. It follows therefore that the right must exist before the money is paid, unless the payment is a condition precedent.

We have now considered the principal claims of the plaintiff, and the only ones which appear at all tenable in his behalf. But he further insists that if the contract operated as a license to the defendants to enter upon his land, the license could be revoked, and that it was revoked when the plaintiff forbade the further prosecution of the work. If the plaintiff is right in this claim, it is not sufficient to prevent a new trial of the cause, for he has recovered damages on the ground that the defendants were trespassers from the beginning, when it is clear that no damages were recoverable before the revocation was made. But if the contract-grants a license to the defendants to enter upon the land, how can the license be revoked and the contract still remain in full force ? The license is a part of the contract. The claim concedes it; and it is manifest that a part of a contract cannot be rescinded without rescinding the whole of it, for the contract is an entirety. It is not pretended that the plaintiff rescinded the contract, or attempted to rescind it, when he forbade the defendants to further prosecute the work. Whether it could have been done if tlieir refusal to pay the money had been absolute, it is unnecessary to state, for the refusal was not absolute, neither did the defendants break their contract by refusing to pay, when payment was demanded. The contract gave them a reasonable time in which to make payment. They had had no opportunity to do so when it was demanded. The case finds that the plaintiff had been absent from the state all the intervening time, and as soon as he returned he made demand, and as soon as his demand was refused forbade the defendants to make further entry upon his land.

We think the contract gave the defendants a license to enter upon the plaintiff’s land, and do the work provided for in it, which was not revoked by the act of the plaintiff in forbidding the further prosecution of the work. And inasmuch as it does not appear that the defendants did any thing more than they were authorized to do by the contract, we think the damages should have been nominal.

A new trial is advised.

In this opinion the other judges concurred.