Section 82 of c. 25, E. S., provides, that any town, at its annual meeting, may, if they see cause, elect by ballot, one or more road commissioners, not exceeding-five, in lieu of surveyors of highways.
By § 83, such commissioners, except as hereinafter provided, shall have all the rights and powers, conferred upon, and be subject to the duties enjoined upon the surveyors of highways in this chapter. And by § 77, of the same chapter, every town may authorize their surveyors, or other persons, to enter into contracts,, for making or repairing the highways or town ways within the same.
No illegality is perceived in the manner of electing the commissioners, nor want of authority on their part, to contract with the plaintiff.
The only evidence we have of the terms of the contract, is found in the recitations of the plaintiff’s bond, which is in the case. From this it appears, that the plaintiff, at and for the sum of two thousand two hundred and fifty dollars, for each and every year, to be paid in equal quarterly payments of five hundred and sixty-two dollars and fifty cents each, agreed to keep open, repaired, and amended, all the highways, town ways, causeways and bridges, within certain limits in Belfast, for the term of four years from the first day of May, 1849, according to the true intent and meaning of the law, and to the acceptance of the board of commissioners for the time being, and to their satisfaction and approval, and to save and hold harmless said inhabitants, and indemnified from and against all claims of every name and description, for damages and for costs, arising from any defect, obstruction or want of repair of any of the roads or bridges as before described, or for the omission of any duty required or enjoined by law of, or upon surveyors of highways. There was also a stipulation in the contract,
To secure a performance of the conditions of this contract on his part, the plaintiff executed and delivered to the defendants a bond in the penal sum of five thousand dollars.
The commissioners did not exercise their power to rescind the contract. But the defendants contend that the plaintiff failed to perform its conditions during a portion of the time covered by it, and for this reason they withhold a portion of the money which they have stipulated to pay. The plaintiff, not admitting any failure on his part, contends that he has a right to recover in this action; and in case there has been a failure of performance on his part, that the remedy of the defendants is upon the bond.
Whether this action can be maintained upon the contract will depend upon the question, whether the mutual stipulations therein, are in dependent,, or conditional and dependent. This is often a difficult question to determine.
The rule laid down by Sergeant Williams, in a note to Pordge v. Cole, 1 Saund. 320, is- perspicuous, and has received general concurrence from judicial writers. “ If a day be appointed for .payment of money, or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act, is to be performed, an action may be brought for the money or for not doing such other act, before performance ; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.”
To the same effect is the language of Shaw, C. J., in Lord
There is no provision either in the contract or bond for withholding the quarterly payments while the contract was in force. On the other hand it is expressly provided, “ that if the said Allard shall at any time fail to perform his aforesaid contract, to the satisfaction, approval and acceptance of the commissioners as aforesaid, it shall be'in their power and at their option to put an end to said contract by giving said Allard written notice of such their decision, and allowing him pro rata pay, as above, to the time of such notice.'''
The defendants manifestly intended to rely upon the bond to indemnify themselves for any failure on the part of the plaintiff. If they have sustained loss through any default on his part, their remedy is upon the bond.
The plaintiff’s writ also contains a count upon quantum meruit, under this count he claims to recover for extraordinary expenses incurred in keeping the “Job White road” and the “ Blackstone road” in repair, in consequence of the imperfect manner in which they w;ere originally constructed.
According to the agreement of the parties a default must be entered for the balance due on the contract, with interest from the time the same became due and payable.