*249DissentiNG Opinion by
Barrows, J.I cannot bring myself to concur with the majority of the court in.this ease, and I think I ought to state my reasons. It may be that seeing and hearing the details of the evidence as I did as referee, I am more impressed with the injustice of the result than my associates could be by a bald statement of the essential facts which I made at the request of the parties in order to present the question to the court.
It seems to me that the opinion of the majority holds the collector and his sureties to the performance of a contract which they never made. One cannot believe that they ever intended to become bound for the collection of a few hundred dollars assessed upon polls and dribblets of personal property scattered all over town, for the trifling percentage which might be a fair compensation for the collection of many thousands, which would call for no greater expenditure of time, travel and trouble, on the part of the collector. From the very nature of the business to be done, in order to hold the collector to any duty beyond the faithful turning in to the treasury of all voluntary payments that are made to him, a condition is implied that the collector shall be armed with a warrant backed by an assessment that will enable him by due diligence to enforce payment of the bulk of the taxes committed to him in the various ways that the statutes provide. Failure in these particulars was the ground of the decisions in Orneville v. Pearson, 61 Maine, 552 and Harpswell v. Orr, 69 Maine, 333.
To me, it looks like trifling with the decision in Harpswell v. Orr, to suggest that both court and counsel may have been so heedless as to overlook in that case the universal fact that such an assessment includes taxes upon polls and personal property, as well as upon real estate, or to shut our eyes to the fact that the failure to collect all such taxes, if it had been regarded by the court as material, must needs have changed the result there reached. There was no element affecting the liability of the principal and Sureties in that case that does not exist here even in greater measure, yet the manifest scope of that decision was to relieve the collector from the obligation to collect poll-taxes *250and the like when the bulb of the assessment fails. If the court intend now to overrule that decision, let it be done distinctly so that it may not be left as a stumbling-block in the way of the profession and the court hereafter.
But I still think that all the town can claim is that the collector undertook upon the implied condition above mentioned to collect from a certain number of people scattered over a territory of definite extent an amount of taxes which was approximately known to be, say, 820,000 for one per cent of that amount.
To me it seems an unreasonable construction of his contract to hold that though that condition is unfulfilled and he is deprived by the remissness of the assessors of the most important means of enforcing payment of the great bulk of these taxes he is still bound to go over the same territory, spend the same time and visit the same number of persons, to pick up in poll taxes and other trifling sums a remnant that is of small importance to the town for a compensation that is ridiculously inadequate, upon pain ot subjecting himself and his sureties to the payment of their aggregate amount with interest.
■ On the other hand it would be equally unreasonable for the collector to claim what the opinion says he " logically ” might, if he is relieved under the «circumstances here presented — that the failure to give him the necéssary power over every parcel of real estate assessed or the trifling diminution of the grand total by abatements and the like .would furnish him the same excuse. Not so; the law recognizes the ordinary course of business and the imperfection of all human proceedings. " Substantial performance ” of duty is what it requires and it will not regard trivial defects. It asks what may be reasonably and justly expected by and of the parties respectively, and that is the -rule which it applies to measure their duties to each other. It will not regard the trifles which contracting parties may seize upon as pretexts to avoid their obligations — but will take a practical view of the nature of the business to which the contract relates and see what reason and j ustice demand of each of them. But the opinion claims that the law can furnish no rule for just discrimination, or, in fact, that it can recognize no difference except that which exists *251between absolute perfection and total failure. Yet at almost every term of the court we negative this idea in practice and leave it to the jury to determine (as in suits to recover pay for skilled labor for example ) whether there has been a " substantial performance ” of a contract, and what it is reasonable and just for the parties to require and expect of each other in various contingencies.
What is tolerable " logic ” is not always good law, and may sometimes lead to very unjust results. But the opinion further maintains that " public policy ” requires us to punish the collector and his sureties for the negligence of the assessors. It seems to me that the true " public policy ” requires rather that all the town officers shall be held to perform their duties with reasonable care and correctness than that such an extraordinary burden should be imposed upon the collector and his sureties by the neglect or want of skill of those whose duty it was to furnish him with a legal warrant to collect a reasonably accurate and legal assessment, such as he had a right to expect when he undertook the collection. The whole substance and effect of the contract of the collector and his sureties here is changed, and they may well say we have entered into no such engagement. There is a radical difference between undertaking the collection of $20,000 in taxes for $200 and the collection of $600 spread over the same territory for $6.
The opinion asserts in effect that the collector ought not to accept the office without examining the assessments. Practically the collector must accept or decline when called upon to take his oath of office, according to the provisions of B. S., c. 3, § § 10 and 15, long before the assessment is made, and his bond is commonly made and delivered before he has an opportunity to make such examination. I think he has a right to presume that there will be a substantial performance of their duties on the part of the other town officers, and where that is found wanting the town cannot hold him or his sureties responsible for the collection of a small fraction of the tax if he declines to proceed farther.
WaltoN and DaNFORTH, JJ., concurred.