Where damages are claimed, for the breach of a special contract, the de- Turnpike Co. claration must count upon the contract.

The common counts will avail in such cases, only where the terms of the special contract have been fully performed, on both parts, and nothing remains but the simple duty of paying for money, labor, or goods, as the the case may be.

It is not always sufficient to describe a contract in the terms in which the contract, itself, is expressed.

If the contract be equivocal, or obscure, its obligations should be described in the language of the law, (with certainty to a common intent) to avoid the consequences of a demurrer, or motion in arrest.

But if the contract be described in the terms of the contract itself, it is no variance.

In construing contracts, courts will endeavor to avoid what is unequal, un-¿ reasonable, and improbable, if this can be done consistently with the words of the contract.

Towns and turnpike corporations have almost an unlimited discretion, in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once, or by instalments or an annuity.

The powers of the directors of private corporations, to bind them by contracts, depends exclusively upon the charter and by-laws (or statutes) of such corporations respectively.

Before evidence of the contents of a writing should be admitted in evidence, it should be shown that inquiry has been made at the place, and of the person, where, or with whom, it was last deposited.

The rule of damages, for the breach of special contracts, where nothing has been paid, is to give the difference between what was to be paid by one party, and the value of what was to be done by the other party, and thus assess the entire damages.

ASSUMPSIT in two special counts, to which were added the common counts. Plea, non assumpsit, and trial by jury. The first count was, in substance, as follows: :

In a plea of the case for that, on the ninth day of September, 1830, at Royalton, in the county of Windsor, there was a bridge across White river, near the village of Royalton, to accommodate travellers, &c., which had before been erected and supported by said town of Royalton as a part of the public highway leading from said village to Pomfret, in said county, which bridge said town of Royalton were bound to keep in repair; that, on said ninth day of September, 1830,

at said Royalton, it was mutually agreed, by and between the plaintiffs and defendants, that the said defendants should lay out and support their turnpike road across said bridge and support the same as a part of their said turnpike road, and that the plaintiffs would pay the said defendants, towards the support of said bridge, twenty-five dollars annually for the term of twenty years, and in pursuance of said agreement the said defendants did lay out their said turnpike road across said bridge, as aforesaid, to wit, at said Royalton, on the same ninth day of September, 1830, and kept said bridge in repair from year to year for several years, until the tenth day of March, 1838, when the defendants suffered the the said bridge to decay, and remain without repair, and become of no use, when it became absolutely necessary to erect a new bridge, at the place where said bridge had stood, and where it was when the contract aforesaid, between the plaintiffs and defendants, was made as aforesaid, and where said bridge had become so decayed as aforesaid; and said defendants neglected and have ever since neglected to erect a new bridge or to repair the one thus decaying as aforesaid. And the plaintiffs aver that they have ever performed all things in said contract on their part to be performed; that they paid to the said defendants, twenty-five dollars annually towards the support of said bridge, for each and every year, from the making of said contract, until the ninth day of September, 1838, when the said defendants had wholly ceased to keep said bridge in repair, and wholly neglected to erect a new bridge in its stead, and altered the survey of their road, and so laid out the same as to carry the travel, upon said turnpike road, to and across said river upon a new bridge erected by the plaintiffs across said river, more than a mile distant from the said bridge which the defendants so agreed to keep in repair as aforesaid, and the plaintiffs, in order to accommodate the necessary travel to and from the said village, and said Pomfret, across the said river at the place where said bridge, so to have been repaired, was at the time of making the contract aforesaid, have been under the necessity of erecting, and have erected, a new bridge, at the place last aforesaid, in doing which they have expended much labor and large sums of money, to wit, to the amount of $700; to wit, at Royalton aforesaid, on the day and year last afore

Isaid, of which the said defendants then and there had notice.

Royalton

v.

R. and W.

Second count. For that, at said Royalton, on the ninth day of September, 1830, there was one other bridge across said river, on the road leading from the village in said Royalton Turnpike Co. southward to Pomfret, which last said bridge was erected by the inhabitants of said Royalton, and which they were holden to keep in repair, and, at Royalton aforesaid, on the day and year last aforesaid, in consideration that the plaintiffs then and there promised the defendants that they, the plaintiffs, would pay to the defendants, towards the support of said bridge, twenty-five dollars, annually, for the term of twenty years, the said defendants promised the plaintiffs that they, the said defendants, would lay out and support their turnpike road across the bridge last aforesaid, and would support said bridge as a part of their turnpike road during said term of twenty years, which the defendants have wholly neglected to do, by reason of which the plaintiffs have been obliged to expend and have expended large sums of money in repairing said bridge and in erecting a new bridge in its stead, &c., to wit, the sum of $700, of which the defendants had notice.

On the trial in the county court, the plaintiffs offered in evidence a copy of the records of the town of Royalton, showing that at a meeting of said town, duly warned, held on the 9th day of September, 1830, the following vote was passed, viz:

'Voted, that if the Royalton and Woodstock turnpike com'pany will lay out and support their road across the bridge 'over White river near Royalton meeting house, and support 'said bridge as a part of said turnpike, the town of Royalton 'will pay the sum of twenty-five dollars, annually, for the 'term of twenty years, to said company towards the support of said bridge.'

The plaintiffs also offered in evidence a paper purporting to be a copy of a contract, recorded in the town clerk's office in Royalton, made between Royalton and the defendants, of the following tenor ;

Whereas, the town of Royalton, at a town meeting 'holden on the ninth day of September, 1830, voted (reciting the vote of the town above set forth.) Now, as sole 'director of said turnpike company, I hereby accede to the VOL. XIV. W. R. IV.

40

WINDSOR.

February, 1842.

Royalton

6

proposition contained in said vote and do hereby, as such director, obligate and bind said company to lay out and support their road across the said bridge and support said 'bridge as part of said turnpike, as is in said vote menTurnpike Co. tioned. EDWIN EDGERTON, director of the

v.

R. and W.

'Royalton and Woodstock Turnpike company.' The defendants objected to the admission of this paper. The plaintiffs then called Edwin Edgerton as a witness to prove that such a contract was executed between the parties, relating to said bridge. This testimony was objected to by the defendants, on the ground that the contract itself should be produced or its loss first proved. The court permitted the witness to testify that he once made such a contract, but not to testify to its contents. The plaintiffs then offered a book of records of the town of Royalton, in which the contract appeared to have been recorded, accompanied with testimony that search had lately been made in the town. clerk's office of Royalton and among the papers of the town treasurer and also among the papers of the selectmen and no such contract could be found. There was no testimony tending to show that said contract was ever in either of those places, except that the records of said town showed that such contract was recorded in the town clerk's office. The defendants objected to the book of records but it was admitted.

The plaintiffs offered in evidence the records and by-laws of the Royalton and Woodstock turnpike company, showing that such by-laws authorized the appointment of a director, or three directors, as a majority of said company might deem necessary, who should have power to make all necessary contracts in behalf of said company, for the purpose of carrying into effect the purposes of the grant; and further showing that at the annual meeting of said company, duly warned, held on the first Monday of January, 1830, said Edgerton was appointed sole director of said company for the year next ensuing, and that, at said meeting, a vote was passed appointing said Edgerton a committee to lay out and alter the road of the company in such place or places as in his opinion might be expedient for the year ensuing. These records and by-laws were objected to by the defendants but admitted by the court.

The plaintiffs then called said Edgerton to prove the con

WINDSOR, February, 1842.

Royalton

v.

tents of said written contract, to which the defendants objected, on the ground that the plaintiffs had not proved its loss, or given the defendants notice to produce it; but, as it did not appear that the original paper was ever in the custody of the defendants, the objection was overruled, and the wit- Turnpike Co. ness testified that he, as sole director of said turnpike company, executed such a contract as was found recorded in the record book of the town of Royalton, as above stated.

The plaintiffs also introduced testimony tending to show that they had annually paid the defendants twenty-five dollars as alleged in their declaration.

The plaintiffs then introduced testimony tending to show that the bridge was out of repair in the fall of 1838, and winter and spring following, and that on the 2d day of May, 1839, notice was given to Gardner Winslow, who was sole director of the said turnpike company, that said bridge was thus out of repair; that on the 14th day of May, 1839, the town of Royalton held a town meeting at which they directed the selectmen to put said bridge in a good state of repair; that on the 5th day of the next July the town of Royalton, by their selectmen or committee,commenced repairing said bridge, and that since September, 1838, the defendants had done nothing towards the support of said bridge. There was no proof that the town of Royalton ever paid the defendants any. thing, after the annuity which fell due in September, 1838.

The plaintiffs further introduced evidence tending to show that the defendants, by their directors, changed their turnpike road and carried it across the river near the house of Jacob Fox, in Royalton, and carried it over a bridge erected by said town in 1837. This was done on the 26th day of November, 1838, and from that time forward the defendants ceased using the bridge at Royalton village. There was also evidence tending to show that when the contract was made, the old turnpike bridge at Fox's was gone and that the bridge below the village was old and the defendants were obliged to build and did build a new bridge, two reaches in 1831, and one other in 1832, and that on the 14th of May, 1839, the bridge required to be rebuilt; also that the bridge at Fox's, which the town had built in 1837, was in repair.

The defendants requested the court to charge the jury, that if they found that the defendants made such a contract

R. and W.