13 Md. 314 | Md. | 1859
delivered the opinion of this court.
The plaintiff, the present appellee, contracted to put up a mill guarantied to grind the best wheat flour, with the neces
It is manifest, that the object of such provisions in building contracts is certainly as to the terms on which the work is to be done, in. order that the parties may know how much one is to pay and the other to receive for such changes and alterations as maybe made. Neither has a right to change the plans without the other’s consent; but, as this may be done by agreement, when alterations are specified in writing and attached to, tfhey become parts of, the original contract, and the-builder may recover for such work according to the agreement in that behalf. The present plaintiff undertook to erect a mill, a work requiring practical knowledge and skill in that branch of the mechanic arts, on which it is to be presumed, the defendant relied in giving him the contract.- It was his right, as well as duty, to determine what was necessary to complete such a mill as he liad contracted to put, up; and as to all matters not mentioned in the agreement, or laid down on the plans, he was solely responsible. He was under no obligation to receive suggestions from Abbott; on the contrary, if he deemed them unsuitable or impracticable, or likely to cause increased expense, he should have resorted to the contract, as containing all that he was required to perform, and insisted on having the additional work brought within its terms, as well for his own
The defendant having made a claim, by way of reduction of damages, fop losses sustained by not having had the use of the mill, according to the contract, prayers were offered on both sides on that subject, which we are now to consider. In many .cases a defendant may recoup for damages, resulting from the plaintiff’s failure to execute his contract. Formerly a cross-action was deemed to be the proper remedy; but now the law js settled, that the matter may be urged by way of defence. We do not say, that a defendant can always recoup where he could sue as plaintiff’, but that the principle on which it has been allowed will apply here. 2 Parsons on Cont., 246. Sedgwick, Ch., 17. Beall vs. Pearre, 12 Md. Rep., 550.
Where unliquidated damages are claimed, whether by the plaintiff, as his cause of action, or by the defendant, in reduction of the verdict, it js very difficult to apply a rule that will do full justice to the parties; the most that courts can accomplish is to approximate that result, with the limited and imperfect aids that the parties may furpish. As a general proposition, one who has so suffered, is entitled to be placed as nearly ps money can do it, in the same plight as if the contract had been faithfully executed. Rut there are many transactions in which this is wholly impracticable, because of the impossibility of determining, after the occurrence, what might have happened under a different state of things. The books furpish numerous examples, in which trials at law have come far short of meeting the demands of justice, though the result could not have been different in the particular cases without Jetting in a most loose and uncertain measure of damages, and very dangerous, because liable to be abused. The law, for the purpose of preventing wrong and injustice, and to make compensation as far as regard for truth and certainty would
But the inquiry here is, what standard of value for the loss of time shall we apply? We cannot adopt any estimate of profits that Abbott might have realized from working the mill, because these were merely speculative, depending on the quantity of flour it might grind, the fluctuations of the market, as to prices of flour and grain, and the remote contingencies of Jiis being able to procure wheat, labor and fuel, as well as the
Considering the uncertainties attending the milling business, and the difficulty of defining a safer guide for juries, we are of opinion, that a fair rent is the most reasonable standard of the defendant’s loss by reason of the plaintiff’s failure to complete the mill. This we take to be consistent with well established principles, and the doctrine recognized in this court, in a case where the measure of damages for loss of the use of a mill was a point in contest. Smith vs. Middlekauff, 1 Md. Rep., 329. Though the courts in Vermont appear to allow evidence of what the mill could have earned. 18 Verm., 620.
We think, therefore, the court was right in granting the plaintiff’s second prayer. The 5th and 6th prayers of the defendant also relate to his claim for damages. They were properly refused, because the fifth claimed damages, by way of reduction, for loss of the use of the mill from the time originally
The remaining question arises on the defendant’s motion’ for a nonpros., which,-in view of its importance, we shall decide without reference to the time at which it was made.
The 10th and 11th sections of the 4th article of the Constitution, define the jurisdiction of the Court of Common Pleas- and of the Superior Court. They are not to be taken as an intimation, that each court was peculiarly adapted to the class' of cases specially confided to it, but as showing a plain design to facilitate and promote justice by a division of business, and-this was to be insured by preventing the accumulation of suits in the Superior Court, at the option of plaintiffs. The jurisdiction is made to depend on the amount of the “debt or damage claimed,” and “in case any plaintiff shall recover less than the sum of five hundred dollars, he shall be allowed-dr adjudged to pay costs, in the discretion of the court.” The Judiciary act of 1-789 gives jurisdiction where “the matter in dispute exceeds the sum or value of five hundred dollars, eL elusive of costs, to be made to appear to the satisfaction of the court.” Under this act, it has uniformly been held, that the damages claimed in the writ is the test of jurisdiction, even iii cases where the demand was on a note for less than five hundred dollars; if the verdict be for less the plaintiff does not recover costs, but, at the discretion of the court, may be adjudged to pay costs. 8 Cranch, 229. 3 McLean, 91. 2 Wash., 463; 16 Peters, 97. If the point before us rested merely on-
If it clearly appeared, by the record, that the trial and finding of the jury were confined to the items of extra charge, there would be no reason for a venire de novo, all the evidence on that part of the case being now excluded. But the pleadings and proofs relied on set-off and payments on the original contract, and as it does not appear but that the verdict was made up, in part, of a balance due on that account, the plaintiff will have leave to apply for a procedendo.
Judgment reversed: