
    Lyman Taft versus The Inhabitants of Montague.
    Where one had contracted, for a price agreed, to erect a bridge in a particular manner, and he executed it so unfaithfully that, although it served its intended use for a time, yet, from the manner of building it, it gave way, and was finally carried away by a flood, — he could not recover on the special contract, because he had not fulfilled it; nor on a quantum meruit, because the defendants had received no benefit from his labors.
    The action was assumpsit. The declaration contained several counts; one of which, and upon which the plaintiff relied, was upon a special contract to build a stone bridge, for the defendants, over a small stream of water running across a highway in Montague, for which the defendants were to pay one hundred and nine dollars and twenty-five cents; and the bridge was to be built in the manner particularly described in this count. There was also a count upon a quantum meruit for the same services.
    
      At the trial, which was had upon the general issue at Greenfield, in the county of Franklin, May term, 1816, before Putnam, J., the defence was, that the plaintiff had not performed his special undertaking, nor, in fact, done any meritorious service for the defendants.
    *It was proved that the plaintiff built the bridge in the autumn of 1810, but not in a workmanlike manner. It stood, however, until the spring of 1812, having been occasionally repaired during that period: then the eastern arch of the bridge fell down. The defendants then filled it up, and made it passable, relying upon the other arch as a sufficient passage-way for the water. The bridge stood afterwards until the autumn of 1814, when the other arch fell in. The defendants then determined to rebuild it the next year; and the selectmen in the mean time made some cheap, temporary repairs, which rendered the bridge passable until September, 1815, when it was all swept off by a flood, which occurred on the 23d of that month.
    Since that time the defendants have built a new bridge on the same site; but the stones and other materials, of which the bridge that had fallen down was constructed, were so entirely carried away by the -flood, that the defendants built their new bridge of . other materials and of other stones.
    It was proved that the abutments of the bridge which the plain tiff built were made principally of cobble stones, and that these were not well laid together ; in particular, that, in the eastern arch, which first fell down, the stones were not bound together at all from the bottom to the top.
    It was also in evidence, that, before the contract was made, a committee of the town viewed the place where the bridge was- to be built, and ascertained that stones of proper shape and size could be had near the place; and the parties made the contract with the understanding that stones of this description should be put into the work. But the plaintiff did not procure them, although he might have done it, for aught that appeared.
    The plaintiff proved that he laid the foundation of the abutments as low as was requisite, and that the bridge was as wide, as high, and as long, as it ought to have been. But it was proved that the stones were not of proper shape and size, and were not laid and bound together in a workmanlike manner.
    * The jury were instructed that, if they were satisfied
    from the evidence that the plaintiff had failed to perform his special contract, their verdict should be for the defendants; and that, under the circumstances of this case, nothing was to be allowed under the count for the quantum meruit, on the ground that the evidence in the case would not warrant a recovery on that count; inasmuch as the defendants had not received any benefit from the iii-directed labor of the plaintiff, but, on the contrary, had been put to expenses and inconvenience in consequence of the nonperformance of the contract on the part of the plaintiff.
    The jury found a verdict for the defendants ; and the plaintiff moved for a new trial for misdirection. If the direction was wrong, or if the plaintiff, under the circumstances of this case, ought to recover, the verdict was to be set aside, and a new trial granted ; otherwise judgment was to be rendered according to the verdict.
    
      Bliss and Mills, for the plaintiff,
    contended that, as the plaintiff had completed the bridge of the dimensions and within the time limited by his contract, he was entitled to recover on the special contract. If the work was unfaithfully performed, or the materials not such as they ought to have been, the defendants would have their remedy by action for the fraud. So was the rule laid down by Buller, J., in the case of Broom vs. Davis, 
       which was an exact parallel to the case at bar. The same rule was adopted by this Court, in the case of Everett vs. Gray & Al. 
      
    
    But if the Court should hold the plaintiff not entitled upon his contract, he must have a claim under his count on a quantum meruit for his work and labor, from which the defendants have derived essential benefit. They enjoyed the use of the bridge which the plaintiff built for several years. They made repairs upon it as their own bridge, which proves their acceptance of it.
    
      Ashmun and Strong, for the defendants,
    cited the cases of Cook vs. Jennings, 7 D. & E. 381, and Faxon vs. Mansfield & Tr. 2 Mass. Rep. 148.
    
      
       7 East, 480, note.
    
    
      
       1 Mass. Rep. 101.
    
   * Parker, C. J.

It would be a reproach to the law, if the plaintiff could recover the stipulated price" of the work which he undertook to perform, when, by the evidence in the case, it manifestly appears that the defendants would be entitled to a larger sum from him, as damages for the non-performance of his contract with them. He engaged to erect the bridge of proper materials, and in a workmanlike manner. The verdict of the jury proves that he has not performed this contract; and the evidence reported shows a good foundation for such a verdict.

It is now urged that he may recover the sum agreed upon, and that the defendants must sue him for their damages.

There are cases in the books in which this course has been held to be necessary. Such is that of Everett vs. Gray & Al. But there the gunlocks, which were the subject of the contract, had been received, and afterwards proved to be defective; and it was thought that the defendants could not be permitted to show the defect, although arising from fraud in the plaintiff, against his claim for the consideration according to his contract.

The law of that case has since been questioned; and we are certainly not disposed to extend it to cases not exactly similar. The ground of the decision was, that the gunlocks were accepted without objection at the time. Now, in the case at bar, there has been no acceptance of the bridge, nor could there have been, without some corporate act on the part of the defendants. The mere passing over the bridge was the act of individuals ; and the repairing of it was a work of necessity, the town being obliged to have a passage over the stream. The act of repairing by the selectmen cannot, for the same reason, be construed into an acceptance of the bridge in its imperfect state.

We therefore think the defence set up is sufficient upon the special count; and as the case negatives the supposition that any of the materials prepared by the * plaintiff went to the use of the town, the other counts are not supported,

Judgment on the verdict. 
      
      
         [Chapel vs. Hicks, 2 C. & M. 214. — Men vs. Cameron, 1 C. & M. 832. — Harrington vs. Stratton, 22 Pick. 510. — Parish vs. Stone, 14 Pick. 198. — Ed.]
     
      
      
         [Stark vs. Parker, 2 Pick. 267. — Shepherd vs. Temple, 3 N. H. 455. — Duncan vs. Blundell, 3 Stark. Rep. 6. — Olmstead vs. Beale, 19 Pick. 528. — Wellington vs. West Boylston, 4 Pick. 103. — Hill vs. Green, 4 Pick. 114. — Moses vs. Stevens, 2 Pick. 332.—Hayward vs. Leonard, 7 Pick. 181. — Phelps vs. Sheldon, 13 Pick. 50.— Smith vs. First Society in Lowell, 8 Pick. 178. — Deusen vs. Blum, 18 Pick. 231. — Holingshead vs. Macker, 13 Wend. 276. —Morris vs. Windsor, 3 Fairf. 293. — Ed.]
     