Davis v. Barrington
Superior Court of New Hampshire
Assumpsit. This action was brought December 27,1852, to recover for making a piece of road. The writ contains a count for work and labor and materials found and a quantum meruit count.
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Assumpsit. This action was brought December 27,1852, to recover for making a piece of road. The writ contains a count for work and labor and materials found and a quantum meruit count. The section in dispute is mostly upon the plaintiff’s land, and is about one hundred and forty-four rods in length, and it is the middle portion of a much longer highway, which was laid out by the selectmen in 1851. The plaintiff proved that he bid off at auction the making of this section, but did not show upon what conditions his bid was made. He also proved that he worked upon the road, and in the latter…
1Opinion of the CourtWoods, C. J.
It was material to the plaintiff to show that the work done in this case was done in pursuance of his individual contract with the town. If not, the action could not be maintained. If done in pursuance and in performance of a joint contract, entered into by the plaintiff and Tebbetts with the town, this action could not be maintained. The evidence would not support the declaration. It would furnish the case of a variance.
The bond, given in evidence by Barrington, clearly tended to show the contract for working the road to be the joint undertaking of Davis, the plaintiff, and Tebbetts. It was…
2Cases cited1 opinion
- Britton v. TurnerSuperior Court of New Hampshire · 1834
3Cited by3 opinions
- Rhobidas v. ConcordSupreme Court of New Hampshire · 1899
- Dame v. WoodsSupreme Court of New Hampshire · 1905
- Page v. Northeast Combustion Service, Inc.Supreme Court of New Hampshire · 1973