Curtis v. Vermont Central Rail Road

*617The opinion of the court was delivered by

Redfield, J.

This is an action of book account, in which the plaintiff seeks to recover for building fence upon his own land, through which the defendants’ road runs, by virtue of a special contract with the defendants, dated August 10, 1847. In October, 1847, and before the plaintiff had built the fence, the parties had a hearing before the appeal commissioners for appraising land dariiages, and the plaintiff obtained a hypothetical report for the amount of the expense of building and maintaining the same fence, which he had contracted with the defendants to build at four shillings per rod, at one dollar per rod. At the November Term, 1847, of the county court, the plaintiff obtained judgment for- the full sum reported, which he has since collected.

The plaintiff, subsequently to the rendition of the judgment, finished building the fence according to the previous contract made with the defendants, and proved, on the trial, that he might, at the same cost, have built a fence worth thirty cents a rod more for his purposes, if he had not built it in conformity with the contract. He now seeks to recover the agreed price of the fence, or else the difference between that and its value to him.

We think, the judgment on the report must be regarded as á merger of the contract. Any other view of the subject involves, it seems to us, very manifest absurdities. If one is not to recover pay twice for the same thing, then it is clear, the plaintiff ought not to recover th & full price.

And it seems to us, that the claim of thirty cents a rod is a most remarkable claim to be allowed in this form of action, and under the state of facts, involved in the present case.

1. It seems to have been altogether at the suggestion and against the will of the defendants, that the plaintiff obtained an adjudication, imposing upon him the burden of maintaining the fence. 2. After that judgment, the contract was no longer subsisting, and the plaintiff was in reality building the fence for himself, and might build it as he chose. It was his own folly to build it according to the contract, unless that was the best mode of building it, 3. It seems a rather remarkable asking to have pay for the difference between the ' value and the agreed price of a fence, which the plaintiff himself built, if there were nothing more in the case. But it is supposable, *618this might occur in consequence of the fence being built upon some defective model, or of unsuitable materials. But that does not appear in the case, but only the bare fact of the difference is stated.

But the two former grounds are to us altogether invincible. We think, that if the plaintiff, under the circumstances, could satisfy himself, that he was really building this fence for the defendants, he must certainly possess a very remarkable moral sense. And we are not surprised, that the counsel felt compelled to admit, that he considered the claim somewhat inequitable, and altogether strictissimi juris. And the claim for the thirty cents a rod seems to be a claim for special damage for building his own fence in a particular form, which the plaintiff mistakenly felt compelled to do, in consequence of a contract, which had been merged by a judgment obtained at the solicitation of the plaintiff, against the earnest remonstrances, it may be safely presumed, of the defendants. The mere statement of the claim affords a sufficient answer to it.

Judgment reversed and judgment on the report for the defendants.