New York, N. H. H.R. Co. v. Water Commrs. , 102 Conn. 488 ( 1925 )

The first reason of appeal assigns error in sustaining the plaintiff's demurrer to paragraphs six to eleven of the answer. These paragraphs in themselves attempt to allege a complete and independent defense to the complaint and were evidently treated as such by the trial court, and properly so. As a preliminary question defendant invokes the rule that a demurrer interposed at any stage of the case searches the record and judgment is awarded against the party who first advances a defective pleading, and specifically urges that the complaint is defective in that it supplies no allegation "that plaintiff's expenditures for supporting its track during the performance of defendant's work was due to any cause specified in the contract of indemnity." The second paragraph of the complaint pleads the written contract between the parties and annexes the same as an exhibit, making it part of the paragraph; the third paragraph counts upon the part of the contract as providing for indemnification for any expense incurred by plaintiff by reason of work done in connection with the construction of the pipes; the fourth alleges work performed by plaintiff pursuant to the contract, and the fifth pleads the value of the work. The trial court held correctly that this was pleading sufficient in form and substance to permit a recovery by plaintiff. Whether it was so in substance depends upon the construction to be given to the license contract, Exhibit A, and this is considered at large in the latter part of this opinion. The paragraphs of the answer to which the demurrer is addressed are not singly or collectively a defense to the action. The sixth and seventh paragraphs, alleging execution of the contract, Exhibit A, and the employment of the contracting company by defendant, are merely introductory. The mere fact that in the general execution of the pipe-laying a contractor was employed is immaterial and of no significance; the contract, Exhibit A, is an unqualified undertaking to indemnify plaintiff against expenses incurred by it in connection with the laying of the pipe. It is of no consequence whether the agent or contractor was an independent contractor. As soon as the plaintiff was at any expense connected with defendant's construction, the provisions of the contract applied thereto. And for the same reasons it is equally immaterial to say that defendant did not make a special contract with plaintiff to do the work actually performed, or that this work was within the terms of the contract between defendant and the contracting company, for which the latter was paid in full by the defendant, as alleged in paragraphs eight and nine of the answer. The evident purpose of the defendant, in paragraph ten of the answer, is to claim that by reason of the facts therein set up, as heretofore stated, the plaintiff had waived its rights to be indemnified by way of reimbursement for expenses incurred by attempting to collect its bill from the contractor, and that it had no notice of plaintiff's claim until the contractor had completed its work. Such a fact, if true, shows no intent to relinquish any right it might have under the contract. Paragraph eleven, alleging that at the date of settlement with its contractor defendant had sufficient funds in its hands due to the contractor to have paid plaintiff's claim, had the latter used due diligence and given notice of its claim, is apparently an attempt to plead an estoppel. There is here plead no misrepresentation or concealment on the part of the plaintiff, which induced the defendant, in reliance thereon, to forego some right or advantage. Plaintiff was under no obligation to inform defendant that it intended to enforce the provisions of the contract between them. If it had a right of action against defendant, it could enforce it at any time within the period of limitation. The allegations of these paragraphs are immaterial, although in some respects evidentially available under the earlier allegations of the answer. There is nothing set forth in these paragraphs which would not be available in evidence under the prior allegations of the answer and, in fact, the finding of the court shows that substantially all of them were raised at the trial, and had the attention of the court. This last consideration is a sufficient answer to defendant's claim that it had the right to include the paragraphs in question, as emphasizing and elaborating its specific denials made earlier in the answer, even if they were not available as a complete or partial defense. This last consideration also removes the rulings on demurrer.

While technically remaining the subject of appeal, and not ipso facto removed from the case by reason of subsequent trial of the issues of fact, yet when the very questions raised on the demurrer are in fact afterward passed upon at the trial, the appellate tribunal will not review the questions upon the state of the record existing at the time the demurrer was filed and argued. Making such a review would be to decide a moot question. Mechanics Bank v. Woodward,74 Conn. 689, 51 A. 1084; Neuschtat v. Rosenthal,87 Conn. 400, 87 A. 741; Sutherland v. Brown, 85 Conn. 67,81 A. 1033. Referring to the demurrer and all the claims raised thereby, we have to remark that the fundamental claim of defendant lies in the correctness of its construction of the contract, Exhibit A, which is not admitted as a fact by the demurrer (Woodruff v.New York N.E. R. Co., 59 Conn. 63, 90, 20 A. 17), and the proper construction of this instrument is the fundamental consideration in the instant case, and so treated at the hearing upon the merits.

Passing to the other reasons of appeal, the second alleges error by the court in holding that Exhibit A did not authorize defendant to do all of the work necessary in the intended construction. The court did not so hold in terms, nor was such a holding necessary to sustain the judgment rendered. If it were granted that under the contract defendant might go ahead and do all the work pertaining to laying its mains, that does not negative the right of the plaintiff to be reimbursed for expenses incurred by it in connection with the construction carried on by defendant. The fourth reason of appeal assigns error of the court in holding that defendant agreed to guarantee payment for work done and materials furnished to the contracting company under an independent contract with the latter. The court did not so hold, but on the contrary found a request to plaintiff to undertake the work done by it by defendant's agent other than the contracting company.

The sixth reason of appeal assigns error in the trial court's holding that plaintiff might recover for work done and materials furnished which did not directly arise under the contract. The court did not so hold.

The third and fifth reason of appeal as given in full in the statement of facts, appropriately raise the real question at issue in the case, that is, stated briefly, do the terms of Exhibit A obligate the defendant to pay for the work done and materials furnished in the way and under the circumstances detailed in the finding.

The contract, Exhibit A, is one of indemnity. Its operative words in that respect are to "indemnify and save harmless," and has regard to future occurrences. It is entirely unnecessary to indulge in disquisition upon the various meanings of the word indemnify. The word is used in various connections and with a significance to be determined by the context of the instrument in which it occurs taken in connection with the objects to be secured thereby, and the circumstances surrounding the transaction. Well recognized meanings of the word are to "reimburse" or to "make good," contemplating the future payment of money in certain contingencies. Reviewing the contract between the parties, whereby the defendant was given license to extend its mains underneath the roadbed of plaintiff's railway, we see that, among other matters, provision is made for the maintenance of the pipe-line in good repair without leakage, that the pipes shall be laid in a workmanlike manner after notice to plaintiff and under supervision of the plaintiff, that plaintiff shall be saved harmless against all claims, damages and expenses to which it may be subjected by reason of the existence of pipes on the premises, "or by reason of any work done in connection with the construction or maintenance of said pipes," or due to any omissions by defendant with respect to the maintenance or use of the pipes. By means of the above provisions it is clear that there is some work contemplated to be done by plaintiff entailing expense, since the operations were to be supervised by some agent of the plaintiff, and there is no reason to infer that this supervision was to be furnished gratuitously. Defendant's brief admits that under the terms of this contract circumstances might arise under which it would be necessary and proper for plaintiff to incur expense to protect its tracks. That is to say, that if, as the work progressed, plaintiff's inspector saw that the defendant was doing its work in a careless way, so that danger might arise to plaintiff's tracks, this functionary might step in and cause any work necessary to safeguard the situation to be performed by plaintiff's workmen using plaintiff's appliances. It was not necessary under the contract that plaintiff should sit by and see imperfect support given to its tracks by defendant, notwithstanding the warning of its inspector, wait and see an accident occur, and then sue defendant upon another provision of the contract. Such expense would undoubtedly be a charge and expense for which plaintiff might recover under the license contract, Exhibit A. Now the trial court has found that the work of inspection, as well as the work of supporting the tracks, was in immediate charge of its bridge inspector. The court further finds that this work of supporting and protecting the tracks, done by the plaintiff, could very properly be done under strict supervision by competent and experienced railroad men, and could best be performed by plaintiff, who had at its disposal experienced labor and proper materials available for such an undertaking. In such a situation the defendant might well request plaintiff to proceed and do the work necessary for protecting itself, on the ground that it would be done in the most skillful way, and with the incidental advantage that plaintiff would not then be in a position to hold defendant for any damage accruing from defective work, if any accident did actually occur, since in that event the fault would have been that of the plaintiff.

As we have just said, it is conceded that plaintiff might have intervened on its own motion and done just this work, and sued for the expense incurred under the license contract. In such an action it would stand to sustain the burden of proving its intervention necessary. But in our view of the instant case, the request by defendant to plaintiff to undertake this work in legal effect does away with the establishment of a case of actual and evident necessity, and brings the transaction fully within the provisions of Exhibit A, and in case of nonpayment establishes a right of action for the expense incurred arising directly out of these provisions.

We now take up the further transactions between the parties, relating to plaintiff's efforts to secure payment of its claim and the attitude of defendant in that connection, as to which defendant claims that it was foreclosed by the decision on demurrer from establishing by proof the allegations of that portion of its answer to which the demurrer was addressed. We find as we have said, that in fact these matters were gone into at the trial, as properly available under the denials in the first portion of the answer.

Defendant contends that it had no timely notice of the plaintiff's demand. It appears from the finding of the trial court, summarized in the statement of facts hereinbefore made, taken in connection with certain exhibits made part thereof, that defendant had notice of the nature and extent of plaintiff's claim, and that the attempt to collect from the contractor was at defendant's request. The endorsement upon the bill rendered the latter, "Originally rendered City of Hartford, charged you at their request," is especially significant.

The trial court further finds that the defendant had notice of plaintiff's claim, before the former settled with the contractor. It would therefore appear that there was no waiver and no estoppel, preventing plaintiff from recovery in the present action, and that the trial court held correctly in its conclusion that the submission of the bills by plaintiff to the contractor at request of defendant did not absolve the latter from liability.

There is no error.

In this opinion the other judges concurred.