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Meriden Britannia Co. v. Rogers.

thereafter payable to the defendant sufficient to meet the demand of Goodman, and pay him, this being in law a payment to the defendant upon the contract; or, if it preferred for any reason not to put in peril the benefits to be derived from an uninterrupted execution of the contract by the defendant, it could continue to pay him full and equal monthly payments according to the letter of the contract, and rely upon repayment by him, if the pending suit by Goodman against it should result in a judgment in his favor, and compulsory satisfaction thereof by the plaintiff for the benefit of the defendant. The contract expired in 1878 and the defendant then received full payment thereunder. It was not then a matter of certain knowledge to either party that Goodman would be able to obtain judgment; he did not until 1882. In the plaintiff's replication to the defendant's special defense it is alleged that the regular monthly. payments were made in advance to him according to the terms of the contract upon his repeated request and demand, and upon the supposition by both parties, based upon advice of counsel, that the contract was so drawn that no part of the sum to be paid to the defendant could be appropriated by his creditors. Upon the record he did not deny this allegation.

Upon the service of garnishee process upon the plaintiff by Goodman in 1872 it became its right to protect itself against possibility of loss by withholding payment from the defendant; it became his duty to refrain from demanding payment until he had placed the plaintiff beyond such possibility. Having knowledge of its legal right and his legal duty, if thereafter he received regular and full payments from it upon the contract, in advance monthly, he did so under a promise implied by the law that he would save it harmless from Goodman's suit, either by himself paying such judg ment as the latter might recover, or if not thus, by repaying the amount. The defendant's act of receiving full payment, not having protected the plaintiff, was the legal equivalent of a request by him for a loan for his own use and benefit, the granting of such request, and the conse

Meriden Britannia Co. v. Rogers.

quent promise by him to repay, precisely as if no other transaction had taken place between them. Under the circumstances his reception of the money which would have become payable to him, had not the law sequestered it in the hands of the plaintiff for the payment of his debt to Goodman, was a request to it to pay for his accommodation from its own funds a debt which he justly owed and a promise by him to repay the money. He is responsible in the legal sense for all that has occurred; he requested Goodman to become and compelled him to remain his creditor; he requested the plaintiff to hold his money in its hands within. reach of legal process by Goodman, and thereby become liable to a judgment against itself for his sole use and benefit; he has received from it all the money belonging to him in its hands; he has left it to pay, in addition, his debt to Goodman. The necessary legal consequence is that he must repay.

The plaintiff permitted all of the money of the defendant to go out of its hands into his own after service of process of garnishment by Goodman. By so doing, as between the latter and itself, it by force of law became liable to pay the defendant's debt to Goodman from its own funds; subjected its own property to the levy of an execution; and did in fact upon legal compulsion satisfy his judgment from its own money. But as between it and the defendant, the debt was in no sense that of the former; in every sense that of the latter; and he is not to be heard to contend that, inasmuch as the former stepped into his place at his request and for his benefit and became primarily liable to pay his debt and permitted him to fall into the position of surety, he can now insist that as between them it simply discharged its own obligation.

There is error in the judgment complained of.

In this opinion the other judges concurred.

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55 510 355

Diamond Match Co. v. Town of New Haven.

THE DIAMOND MATCH COMPANY vs. THE TOWN OF
NEW HAVEN.

New Haven Co., June T., 1887. PARK, C. J., CARPENTer, Pardee,
LOOMIS and BEARDSLEY, Js.

The selectmen of the defendant town, under an act of the legislature giving the town authority, straightened and deepened the channel of a river running through the town, to prevent injury to the public health caused by its spreading over adjacent low grounds. They employed a competent engineer to plan and lay out the work, and used reasonable care with reference to making the change effectual for the purpose and avoiding injury to contiguous property. A flood however of extraordinary character afterwards occurred, when the ground was frozen, and the new channel, the raised banks of which prevented overflow, was not sufficient for the volume of water, and it set back upon and injured the property of the plaintiff. Held that the town was not liable.

It was found that the damage would not have been done if the banks of the new channel had not been raised above the level of the adjoining ground, and that this was no part of the plan of the engineer, but was done as the easiest mode of disposing of the soil; but it further appeared that the work was done under a contract the specifications of which required the earth to be thrown out upon the banks, and that the specifications were prepared by the engineer and the work done under his oversight and to his acceptance. Held that the selectmen were not to be considered negligent in the matter.

The selectmen having employed a competent engineer, the town would not be made liable by his misjudgments.

A flood of so extraordinary a character that a provision for it could not reasonably be required, is not necessarily an unprecedented one, but one that was so unlikely to happen or happened in such unusual circumstances, that it could not have been expected.

[Argued June 9th-decided October 21st, 1887.]

ACTION for obstructing the flow of a stream by means of which the water was set back upon and injured the property of the plaintiffs; brought to the Superior Court in New Haven County and tried to the court before Stoddard, J. The following facts were found by the court.

A special act passed by the General Assembly in the year 1881 with regard to drainage in the town of New Haven, provided as follows: "The town of New Haven, acting by and through the board of selectmen thereof, is authorized

Diamond Match Co. v. Town of New Haven.

and empowered, within the limits of said town, to take, acquire, appropriate and hold, for the purposes of drainage and sewerage, and to protect and preserve the public health, at such times and in such manner as the public health in the opinion of said board of selectmen may require, real and personal property, and any and all streams and watercourses, natural and artificial, or any portion thereof, and any rights connected therewith, and may also raise, fill up and drain low grounds, may deepen, clear out, alter and straighten said streams and watercourses, may construct and maintain sewers and other channels for the flow of water, and maintain and establish the bounds of said watercourses, streams, sewers and channels."

In 1881 West River was a stream running into New Haven harbor by a very winding and irregular course, through a tract of low meadow land, varying from five hundred to fifteen hundred feet in width, in the western part of the town of New Haven. It formed the westerly boundary of the city of New Haven, and was crossed and bridged by Whalley avenue, and lower down by Derby avenue, highways of the city and town of New Haven.

The river was subject to annual overflow, and in 1881 the selectmen of the town, upon the complaint of sundry inhabitants that malarial influences were engendered by it, determined, as a sanitary measure for the protection of the public health, to straighten the channel of the river between Whalley avenue, on the north, and Derby avenue, on the south, assuming to act for that purpose under the above act of 1881, and it being contemplated at the time that the city of New Haven would thereafter continue the work of straightening the channel within the city limits southwardly to the harbor.

For the purpose of carrying out the project thus determined upon, the selectmen of the town made an arrangement with the authorities of the city of New Haven, by which the city agreed to pay to the town one half of the expense of the work between the two avenues before mentioned, and also agreed to provide through the city engineer all neces

Diamond Match Co. v. Town of New Haven.

sary engineering work, including the plans and specifications for the contemplated work.

In 1882, accordingly, the city engineer made surveys of the whole work contemplated under the agreement, prepared his plan, and submitted the same to the selectmen, with a map exhibiting the proposed changes in the course of the river.

The selectmen, after public hearings for the purpose of considering the proposed plan of work, approved of the same, and in 1882 contracted for the execution of a portion of the work in accordance with the plan and specifications prepared by the city engineer, this portion of the work being the section between Derby avenue and Martin street, which last street is midway between Whalley avenue and Derby

avenue.

This portion of the work was completed by the contractor and approved by the selectmen before the remaining section. of the work between Martin street and Whalley avenue was put under contract.

In 1884 the selectmen, after a further public hearing for the purpose of considering the proposed plan of straightening the river between Martin street and Whalley avenue, approved of the plan submitted by the city engineer, and in the fall of 1884 contracted for the execution of the work in accordance with such plan and the specifications prepared by the city engineer.

There were three contracts made for the execution of the work. The first of these was with C. W. Blakeslee & Son, made on the 6th of October, 1884. This contract contained the following specification with regard to the embankments: "The material excavated from the new chaunel shall be deposited on each side of the cut in equal proportions, excepting that enough shall be taken to fill in the ends of the old channel as hereinafter specified. The material deposited on the sides of the new channel shall be made in the form of embankments parallel with the new channel of a uniform height of four feet and as shown on the cross section. No material shall be deposited nearer to the new channel on

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