"While a plaintiff who has done work under a special contract, when suing on the contract, has the burden of proving that he has complied with its requirements, yet, on his failing to sustain that burden he can, by resorting to a count of quantum meruit, and by proving the value of the work done by him (which he failed to prove was a performance of what he agreed to To this point many cases are here cited. perform), shift the burden of proof and throw It is then stated that 12 years before Hay- on the defendant the burden of proving that he ward v. Leonard it was decided that there committed a breach of the contract; and that, could be no recovery on the doctrine after- in this way, he can entitle himself to the value wards stated at length in that case, if the of that work to the same extent as he would result of the plaintiff's misdirected work was have been entitled had that work been done in not a thing of value. In view of this lasted to have it done; and to recover that valthe manner in which the defendant requeststatement, the court then further say:

ue unless the defendant goes forward and, "It is plain, therefore, that the plaintiff who by way of recoupment, cuts that amount down seeks a recovery under the principle of Hay- by proving that he (the plaintiff) committed a

(106 A.)

breach of the contract under which the work was done, and that he (the defendant) has suffered damages from that breach and proves the amount of those damages."

These contentions were specifically denied in the opinion.

It would appear from this summary that in the Gillis Case were made precisely the contentions which were made in the case before us, and especially that the defendant by way of recoupment must assume the burden of cutting down the amount proved by the plaintiff, and the amount of those damages. This contention, as above seen, was overruled by the court. We have cited this case thus fully because, as before stated, it discusses fully the very foundation upon which quantum meruit is based, the ground upon which the action can be maintained, the procedure which the plaintiff must follow, the amount to which he is entitled, and the pleadings upon which the defendant is authorized to present his side of the case. It will now be seen by comparison that Jewett v. Weston, decided in the 11th Maine in 1834, was based upon Hayward v. Leonard and is in perfect accord with the principles and procedure in this form of action found in the well-reasoned opinion just discussed. We have not yet discovered a single opinion which contravenes the reasons, the procedure, or the form of pleadings so fully and carefully laid down in the Gillis Case.

If we now recur to the ground upon which this phase of the case was put to the jury, we find it to be this, as taken from the final word upon this point from the charge of the presiding justice, leaving out the intervening and immaterial clauses:

"But the question is: Does the plaintiff deserve to recover for the logs which he had furnished in good faith under the circumstances discussed in this case?"

We therefore conclude that the defendant's contention that he was entitled to claim and show damages for breach, and to have those damages deducted from what the plaintiff was entitled to recover for the logs he actually delivered, was correct and should be sustained. If the case stopped here, exceptions should be sustained and a new trial granted. But while the plaintiff brought his action in the form of quantum meruit, he was permitted to offer evidence upon the question of damages, that the contract was substantially performed, and that no damages followed. The latter question was submitted to the jury for a special verdict, and they found in favor of the plaintiff.

[3] While the defendant should have been allowed to reduce the value of the logs actually delivered, by way of damages for breach of contract, yet, if the jury were justified in finding that the plaintiff fulfilled his contract, then no damages could follow. This question is one of law and fact. The interpretation of the contract, we think, is a question of law; whether modified, a question of fact. Its language is clear and unequivocal, as to the quantity of logs to be furnished each season. We repeat the paragraph on this question:

"Said Boyd & Harvey Company and Blaine S. Viles agree to sell the Kennebec Lumber Company about four million (4,000,000) feet to be cut during the winter of 1914-1915, about five million (5,000,000) feet to be cut during the winter of 1915-1916, and about five million (5,000,000) during the winter of 1916-1917.”

[4] The word "about" should be understood as limiting all feetage herein considered. We think it was conceded that this was a divisible contract. However this may be, we have no doubt about it. The language makes each season's cut as distinct as though there

Yet the court stated the contention of the was a separate contract for each cut. The defendant in this way: s

"The defendant has stated to the court during

the trial, and he has urged to you, that in arriving at that figure at what the plaintiff reasonably deserves to have, if you come to that, he is entitled to have you deduct the damages which the defendant has sustained by reason of the nonperformance of the contract. I say to you, and I have already stated to him' that, in my view of the law, under the issue as it is framed here, I cannot give you that rule.",

first 4,000,000 was to be cut during the winter of 1914-1915. The phrase, "during the winter," limits the cut and the amount to this particular season. Under the first clause of this contract, the defendant was entitled to about 4,000,000 feet. If he got this quantity, this clause of the contract was completed. If he got less, it was a matter of adjustment, If he got more, that also was a matter of adjustment concerning this first season's cut. To cut less or cut more would be a breach by The court then states that the reason for the plaintiff. The plaintiff did cut more. not giving the rule is because under the The defendant was not obliged to take it. general issue the plaintiff was not entitled to It did, however, adjust the matter, and left, have the issue as to the damages he had the first clause of the contract satisfied and suffered on account of breach of the contract ended. It agreed to carry the surplus of the considered in connection with the plaintiff's first season 'to the credit of the next season action of quantum meruit. "Not, you see, and take 3,800,000 instead of the 5,000,000 whether the defendant was left short of logs specified in the second clause of the contract. for his mill; that is not the question." But, This arrangement was mutually agreed up as before seen, this very question was put in on between the plaintiff and defendant, as issue by the form of the plaintiff's action, the undisputed evidence shows. This set

436

The defendant. Whether the word "about" ought to take care of a shortage of 1,000,000 feet in 14,000,000, quære?

tlement included pine as well as fir. season's operation was closed. All the logs of the 1914-1915 cut were paid for in full, some at a special price, as testified by the plaintiff. This settlement, so far as we can see, resulted in a completed transaction so far as the first clause of the contract was concerned, involving the 1914-1915 cut. The second clause of the contract was precisely like the first, except the cut was to be 5,000,000, and "during the winter" of 1915-1916.

As before seen, this quantity was by mutual agreement reduced to 3,800,000 by reason of the surplus of the previous year. "About" 3,800,000 feet was the quantity the defendant was entitled to under this second clause, and second season, of the contract. If it got less, it was a matter of adjustment. If he got more, it was likewise a matter of adjustment. It was not obliged to take more or less. If the paintiff gave it more or less, He did furnish he violated his contract. more, by 895,643 feet. But this excess was adjusted between the plaintiff and defendant. The defendant took the timber, paid for it, and ended this season's transaction. It was a completed matter. That is, if there had not been another season's operation involved, the first and second season's operations would have been mutually and completely settled and ended, except the possible payment of some notes, which of course were rather evidence of a settlement than otherwise, as the logs had all been delivered, and many at least manufactured. There was no agreement upon this second settlement that any of the surplus logs for the winter of 1915-1916 should be carried over to reduce the cut of the winter of 1916-1917, as had been done in 1914-1915. In the above figures we have regarded the pine as a part of the contract as claimed by the plaintiff. It would therefore appear from the undisputed evidence that the first and second clauses of the contract were carried out and executed as above stated. And that is the way matters stood when the time approached for the The third performance of the last clause. clause called for about 5,000,000 feet to be cut during the winter of 1916-1917. the plaintiff, instead of furnishing about 5,000,000 feet, supplied the defendant with only 2,934,855 feet-a shortage of 2,065,145. But notwithstanding the settlements for the seasons of 1914-1915 and 1915-1916, the plaintiff claims that the contract was so modified that it was made entire instead of divisible, and that, instead of regarding the feetage of the first and second operations as separate and completed transactions, the surplus of these operations should be applied to the contract as a whole and reckoned as a part of the total 14,000,000 feet, thereby leaving a shortage on the total feetage of about 1,000,000 feet instead of over 2,000,000 on the last season's cut, as claimed by the

But

[5] However this may be, the word "about" cannot take care of a shortage of 2,000,000 feet in 5,000,000. This brings us to the question of fact. The burden is on the plaintiff to show the modification of the contract, as We think the case will claimed by him.

show that the only evidence by which he seeks to assume this burden is a letter from the defendant company to him dated November 28, 1916, just prior to the time of proceeding to the third operation under the terms of the original contract. The letter is as follows:

As

"Mr. Blaine S. Viles, Augusta, Maine-Dear Sir: I trust that you expect to finish up our contract deliveries during the coming year. We are counting on receiving from you next summer the balance of fir to make up the total quantity called for by the contract. Nothing has been said about pine tops this year. Last year there seemed to be some misunderstanding relative to these pine tops. You insisted in settlement that the price should be one dollar above the fir, where my recollection was that the pine were to go in at the same price as the fir and be considered as a part of your contract. we paid you one dollar per thousand for the pine more than for the fir, it would appear that the pine was an entirely separate trade exclusive of the contract, both with regard to total feetage and deliveries and with regard to price. The pine tops which we had did not work out very satisfactorily and we would not care for more of them during the coming year, but would like the full quantity of fir due us under contract. I understood Mr. Boyd to say that they should have approximately one million feet of this. Will you please advise how many you are planning on cutting for us? I would also call your attention to the fact that our contract calls for no saw logs to be taken from the fir which we have. Yours truly, Kennebec Lumber Company, S. H. Boardman, Treas."

The claim in the letter which the plaintiff says should be construed as a modification is this:

"We are counting on receiving from you next summer the balance of fir to make up the total quantity called for in the contract."

Upon cross-examination Mr. Boardman, agent of the defendant company, repeatedly said the surplus of the previous season's cut was not meant to be reckoned on the last operation. But finally this question and answer was obtained:

"Q. The only way you could get the balance on the total quantity was to subtract what had hitherto been furnished? A. Yes. This was correct as a mathematical problem, of course."

Then followed this question and answer:

"Don't you think that is what you meant when you wrote them to give you the balance? A. That might have been in my mind."

(106 A.)

These answers were obtained after a long and somewhat grilling cross-examination in regard to the interpretation of the abovequoted clause. Just prior to these ques-; tions and answers, when the specific question was put, Mr. Boardman answered as follows: "Q. To get the balance, 'you had to find out how much you had? A. Yes (another mathematical deduction). Q. Wasn't that just what you meant, for him to subtract from the total, what you had had, and furnish you the balance? A. Not from the total of what he had furnished, Mr. Pattangall."

Up to the time of this letter not a word had ever been said between these parties about applying the surplus cut of the two previous seasons to the cut of the last season, nor to the entire contract. Nor was a word in regard to it ever said after the letter until the parties met in court, when the plaintiff raised the question. We do not think that a fair interpretation of this letter, in the light of the circumstances and the testimony, bears out the interpretation the plaintiff seeks to put upon it. In the first place, there was no occasion for the defendant to write at all about the feetage of the contract. The two previous operations had been completed and settled without a word about it, and the contract called for about 5,000,000. But in the two previous operations a certain amount of pine had been cut which the defendant was not obliged to take, but he had taken it and settled for it. This season the defendant did not want this pine, as a part of his supply.

during the coming year, but would like the full quantity of fir due us under contract."

"Fir" instead of "pine," was the object of this letter. That the plaintiff so understood it both as to "fir" and feetage for 1916-1917 clearly appears from his own testimony. Before he received the letter he was cutting, pine as usual for the defendant. Q. Will you tell us about the pine, why you got so little? A. The reason I stopped, on receipt of the letter, or as soon as I could get up river, I stopped my operation cutting the small pine and put it into this fir mark.

But,

This shows what the letter meant. if there was any doubt that the plaintiff understood the letter to make no modification, his own testimony, as to the quantity he intended to cut, removes it.

Q. What arrangement did you make to get Mr. Boardman fir that winter (1916-1917)? A. Why, I planned to cut Mr. Boardman-how much fir? Q. Yes. A. I planned to cut him about 2,000,000 of fir myself. I talked with Boyd and Harvey, and they expected to cut a million or more, and, as I learned that they were getting more, I figured they would probably get, about 2,000,000. They cut a million of pine, that is, with the pine they cut that winter, and I figured that would fill the contract of 5,000,-* 000:

It is very evident that the plaintiff at this time did not regard this letter as a modification of his contract in regard to the 5,000,000 feet for 1916-1917, but planned and expected to cut this quantity this season. It is equalIt is therefore apparent, from reading this ly evident that Mr. Boardman never intendwhole letter, that the sole occasion and mo- ed it as such. Consequently, the parties neitive for writing was to differentiate between ther understood nor consented to any modfir which his contract called for and pine ification. So far as we are able to deterwhich his contract did not call for and which mine, the question was first raised in court, he did not want. The wording, balance of after the parties had engaged in a legal confir to make up," etc., is an awkward way of troversy. Hence there was no ratification. stating the claim; but, read with the rest We are of the opinion that the plaintiff has of the letter, its meaning seems clear that not presented any competent evidence, showthe defendant in substance says, I wanting a modification of his original contract. "fir," instead of any "pine," to make up the balance of my contract or to make up the total quantity called for by the contract. The very next sentence is:

The special verdict, based upon such modification, should be set aside. The question of damages was thereby left open. The instructions upon the mode of procedure involving the measure of damages was erroneous. Exceptions sustained.

Leave granted to defendants to appeal in chancery proceedings cannot enlarge the right of appeal conferred by G. L. 1561.

ed could not enlarge the right of appeal conferred by the statute. It follows that the causes remain in the court of chancery awaiting further proceedings. Ludlow Sav. Bk. & Tr. Co. v. Knight, 91 Vt. 172, 99 Atl. 633.

Appeals dismissed.

RICHMOND v. KETTELLE, Town Treasurer (three cases). (Nos. 310-312.)

(Supreme Court of Rhode Island. May 14,
1919.)

MANDAMUS 154(10)-PROCEEDINGS AGAINST
TOWN TREASURER-PAYMENT OF JUDGMENTS
-AMENDMENT TO PLEADINGS.

In mandamus proceedings against town treasurer to compel payment of judgments against town, where treasurer has not sufficient Appeal in Chancery, Windsor County; Zed town money to pay judgments, petitioners will S. Stanton, Chancellor.

D. A. Pingree, of White River Junction, for plaintiffs.

Charles Batchelder, of Bethel, for defendants.

PER CURIAM. These cases were heard together on motions to dismiss the appeals and present the same question. The actions as originally brought were petitions at law for partition. Such proceedings were had therein that, on the application of the plaintiff in each case, the cause was transferred to the court of chancery and amended into a suit in equity under the provisions of the Practice Act. In each case the amended pleadings terminated in a demurrer to the bill, which being brought on for hearing was overruled and the bill was adjudged sufficient. Leave was granted the defendants to appeal by filing proper motions therefor. Appeals having been taken and entered in this court, the plaintiffs move to dismiss for that the order appealed from in each case is not a final decree.

[1, 2] The motions are well grounded. The appeals were clearly from interlocutory orders, while the statute authorizes appeals to this court in chancery proceedings from final decrees only. G. L. 1561. The leave grant

be allowed to amend petitions by adding prayers that treasurer proceed under Gen. Laws 1909, c. 46, § 13, to procure a tax to be levied to enable him to pay judgments.

Upon hearing in accordance with former opinion (106 Atl. 292). Amendments to petitions allowed, and judgments reversed, and causes remanded, with direction.

Nathan B. Lewis, of West Kingston, for petitioners.

Quinn & Kernan, of Providence, for respondent.

PER CURIAM. The petitioners are allowed to amend their petitions by adding prayers contained in their motions to amend filed on May 2, 1919..

Inasmuch as the respondent had not sufficient of the money of the town in his hands to satisfy and pay the judgments obtained and the charges expended in defending the suits, the judgments of the superior court in these causes are reversed, and the causes are remanded to the superior court for Kent county, with direction to enter judgments for the petitioners in accordance with the following provision of said amended prayers:

"That he proceed under the provisions of the statutes (section 13 of chapter 46 of the General Laws, Revision of 1909) to make application to a justice of the peace of said town to grant a warrant to the town sergeant of said town, requiring said town sergeant to warn the electors of said town to hold a town meeting, at a time and place to be therein appointed, for the speedy ordering and making a tax, to be collected for the reimbursement of said treasurer the money, costs, and charges so as aforesaid recovered against him," and to issue peremptory writs of mandamus accordingly.

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