#### TOWN OF RUTLAND v. TOWN OF WEST RUTLAND.

May Term, 1895.

*Conclusiveness of award as to matters not considered. Division of Rutland and West Rutland. Memorial hall.*

1. The defendant town 'was created by act of the legislature out of territory formerly comprised within the limits of the plaintiff town. It was provided by the act creating the defendant, that the town property situated within the limits of the plaintiff and defendant should belong to each respectively, to be accounted for at its value, and that the indebtedness of the original town should be shared between the two in proportion to their grand lists. It was further provided that if the parties could not agree as to the value of the property or the amount of the indebtedness, a commission should be appointed whose award in the premises should be final. The defendant became a tovvn March 1, 1887. The two towns were unable to agree upon the division oí the property and indebtedness, and a commission was appointed for that purpose, which made its award November 1, 1887. The plaintiff claimed that it was agreed that orders drawn after March 1, should not be presented to this commission, but should be left for future adjustment. The jury found that there was no such agreement. Held, that the defendant could not recover on indebtedness of the original town, which had been paid and liquidated before the commission made its report.

2. The plaintiff might recover in respect to an indebtedness of the original town which was not adjusted and paid until after the award of the commission, and this would be so in *156case of damages for the laying of a highway which was-wholly within the limits of the plaintiff and which was not actually constructed until after the division, although it had been laid out before.

3. Memorial Hall was situated within the limits of the plaintiff and was in process of erection at the time the act creating the defendant was passed. That act provided that if the-money already raised for that purpose was not sufficient to complete Memorial Hall according to the plans and specifications agreed upon, the defendant should contribute to-its completion in proportion to its grand list. The jury found that subsequent to March 1, 1887, the plans and. specifications were substantially altered; that it would have cost $15,450,875 to have completed the building according to the original plans and specifications ; that the plaintiff town had actually expended $39,942.59 in' its completion and that it had received but $4,958.55 from moneys provided at the time the act was passed. Held, that the plaintiff could recover of the defendant its portion of the difference between what would have been required to complete the building according to the original plans and specifications and the amount which the plaintiff had received for that purpose.

General assumpsit. Plea, the general issue with notice. Trial by jury at the September term, 1894, Start, J., presiding. The court submitted no general verdict to the jury, but did submit certain special verdicts. Judgment for the defendant upon these verdicts. The plaintiff excepts.

The facts sufficiently appear in the head notes and opinion.

*C. L.*Howe, City Attorney, for the plaintiff.

*Butler & Moloney*and *C. A. Prouty*for the defendant.

The plaintiff is concluded, by the report of the commissioners, from recovering in respect to all the indebtedness which was known at the time the commissioners made their award. 1 Her. Est., p. 1416; *Squires*v. *Whiffle,*2 Vt. hi; *Hayward*v. *Clark,*50 Vt. 612; *Morey*v. *King, Rtiller & Co.,*51 Vt. 383 ; *Robinson*v. *Morse,*26 Vt. 392 ; *157
      *Belknap's Est. v. Central Vermont Rd. Co.,*39 Vt. 168; *Eidlersr. Cooper,*19 Wend. 285.

START, J.

By No. 138 of the Acts of 1886, the town of West Rutland was created out of territory previously embraced within the limits of the town of Rutland. This act provided that the indebtedness of the original town should be apportioned between the two towns upon the 'basis of the grand list within their respective limits. It was provided that, if the selectmen of the two towns could not agree, the presiding judge of the Rutland County Court should appoint three commissioners to make such apportionment. The selectmen did not agree and commissioners were appointed. The commissioners heard the parties and made their report. The plaintiff contended in the court below that, upon the hearing before the commissioners, it was agreed that all orders drawn March 1, 1887, or subsequent thereto, should not be considered by the commissioners in determining the amount of the indebtedness of the ■original town, but should be left for future adjustment between the towns. The jury found there was no such agreement, and the court held that the plaintiff could not recover in respect to items that had accrued and were liquidated at the time of the hearing before the commissioners.

This holding was correct. The commissioners were appointed for the purpose of ascertaining the total amount of the existing indebtedness of the original town of Rutland. It was the duty of the plaintiff- to present all known and liquidated indebtedness to the commissioners for allowance; and, if it omitted to do so, it cannot now recover by reason ■of items then known and liquidated but omitted. It is not claimed that these items were omitted from the consideration of the commissioners by mistake, but it is claimed that they were withdrawn from their consideration by agreement. 'The jury having found that there was no such agreement, *158it must be conclusively presumed that all known and liquidated indebtedness was ascertained and apportioned by the commissioners ; and the plaintiff is concluded by the award of the commissioners. *Robinson*v. *Morse,*26 Vt. 392 *; Belknap*v. *Central Vermont Rd. Co.,*39 Vt. 168.

The item of one hundred ninety-nine dollars and ninety cents was adjusted by the selectmen of both towns after the commissioners made their report, and it was agreed that the same should be treated as an indebtedness of the original town. The item of one hundred dollars for land damages was not adjusted until after the report was made. The defendant claims that this item is for land damages paid on account of a highway laid within the territorial limits of the plaintiff town and not built until after the division. The exceptions do not show where this highway'was located or when it was built. The item of two hundred twenty-four dollars and ninety-eight cents is for legal services in litigation that was pending at the time the hearing was had before the commissioners.

These items that have accrued or been liquidated since the hearing before the commissioners must be regarded as a part of the indebtedness of the original town of Rutland, but the sum due in respect to these items should be deducted from the sum of one thousand seven hundred fifty-four dollars and sixty-five cents which the plaintiff has received h> apply upon the indebtedness of the original town of Rut-land from taxes that were uncollected at the time the hearing was had before the commissioners ; and as the share of the defendant in that amount is more than the amount due the plaintiff in respect to the above items, the judgment rendered by the court below in favor of the defendant, so^ far as it related to these items, was correct. It is found by the jury that the one thousand seven hundred fifty-four dollars and sixty-five cents mentioned above was received by the plaintiff to apply upon the indebtedness of the original *159town of Rutland. In view of this finding the defendant is not entitled to have the balance of this sum applied in part payment of the sum expended by the plaintiff, after the division of the original town, in completing Memorial Hall. That was not an expenditure of the original town of Rut-land.

The act creating the defendant town provides that, in case the money raised for the erection of Memorial Hall shall prove insufficient to complete the same according to the plans and specifications agreed upon, the defendant town shall contribute its share toward the completion of the same as agreed, in proportion as its grand list is to the grand list of the whole town. The plaintiff expended in the completion of Memorial Hall the sum of thirty-nine thousand nine hundred forty-two dollars and fifty-nine cents, and has received from money raised or provided for at the time the act creating the defendant town was passed, to apply upon the expenditure thus made, the sum of four thousand nine hundred fifty-eight dollars and fifty-five cents ; and it seeks, in this action, to recover of the defendant its proportion of the balance of the expenditure thus made. It is found that the plans and specifications for Memorial Hall were substantially changed after the division of the original town, and that the sum necessary to complete it according to the plans and specifications that were agreed upon before the division was fifteen thousand four hundred fifty dollars and eighty-seven cents. The defendant claims that it is under no obligation to contribute anything toward the payment of the expense of completing it, because the plans and specifications were substantially changed after the division of the town. _

Memorial Hall was being constructed by the original town at the time the act creating the defendant town was passed, and plans and specifications for its completion had been drawn and some of them agreed upon. It was located *160in that portion of the original town which is now the plaintiff town. It is clear that the legislature, in passing the act, considered the location of the hall such that the defendant town would have no interest in its completion, and would be under no duty to contribute to its completion unless required to do so by the act creating it. The legislature, in creating the defendant town, could say on what terms and conditions it should cease to be a part of the old town and become an independent municipality. It has seen fit to provide that the defendant town pay, as a consideration for its creation, its proportion of the expense of completing the hall according to the plans for its completion agreed upon ; ■and we see no reason why it is not liable to this extent. The hall has been completed by the plaintiff at an expense far in excess of the sum that would have been required if the plans had not been changed, but the defendant is not affected by this change, nor is its liability increased thereby. The expense of completing the hall according to plans that had been agreed upon at the time of the division could be ascertained with a sufficient degree of certainty. The jury have found what sum would have been required for this purpose, and, nothing appearing to the contrary, it is to be presumed that the finding was upon sufficient and competent evidence. The plaintiff claims that the defendant should contribute to the paj'ment of the entire expense incurred in completing the hall according to the changed plans. The act dividing the town imposes no such duty upon the defendant. Its liability is limited to contributing its proportion toward the payment of the necessary expense of completing the hall in accordance with plans and specifications that had been agreed upon at the time the act was passed. To this extent the defendant must be held liable. The defendant is also liable for the balance due upon the award of the commissioners.

*The pro forma judgment is*reversed, *and judgment ren*
      *161
      *dered for the plaintiff to recover two thousand seventy-six dollars and twelve cents, with interest from the date of the writ, and its costs.*