Andrews v. City of Portland , 35 Me. 475 ( 1853 )

Shepltst, C. J.

— The only error insisted upon is the omission to instruct the jury as stated in the second and third requests. The written contract appears to have been made by virtue of an order, passed on August 8, 1850, authorizing the committee on Fire Department u to contract for a suitable number of stone reservoirs, in or near Commercial street, not exceeding five in number.” The order did not authorize the committee to superintend their construction, or to dispense with the performance of the contract, or to determine, that it had been performed. If they had been authorized to build the reservoirs, or to superintend their construction, an authority might have been implied to determine whether the contract had been performed. Their authority extended only to the siugle act of making the contract. The city would not be bound by any other act of theirs without proof, that it had been ratified, and no vote or act, from which this could be inferred, has been introduced. The second request for instructions was therefore properly refused.

The third request rests upon the position, that a partial payment mode on account of it by the city, after a reservoir had been constructed, amounted to an acceptance of it. The case of Hayden v. Madison, 7 Greenl. 76, is relied upon as sustaining it. It appears from that case, that a payment was made by the town, “ knowing that eighty-six rods of the road had not been completed, and making no objection on that account.” It does not appear in this case, that payment was made by the city with a knowledge, that it had not been so far completed, that one reservoir had been constructed according to its provisions. It does appear, that the committee or some of its members had such knowledge, and that objections were made on that account, and that a certain sum was reserved from the amount agreed to be paid, because there had not been such a performance of the contract.

If the city could be bound by these acts of the committee, a payment made under such circumstances would not amount to a waiver of performance of the contract. It not appearing that the city had waived performance, or had accepted and used the reservoir alleged to have been completed, the instructions and refusals to instruct were fully authorized.

Exceptions overruled.

Tenney, Wells and Appleton, J. J., concurred.