Bailey v. Woods

17 N.H. 365 | Superior Court of New Hampshire | 1845

Gilchrist, J.

The instructions of the court, as they related in general to the right of the plaintiff to recover upon a quantum meruit for the work done and . material found by him, in erecting the building upon the land of the defendant, were in conformity with what must be regarded as the settled doctrine of law applicable to such cases. That there was a special contract, which prescribed the manner in which the work should be executed, and that there was a deviation from that contract, and a failure on the part of the plaintiff to comply with some of its terms, are facts which do not preclude him from recovering a just compensation, if these deviations were known and acquiesced in by the defendant, and if the completion of the work was prevented by him. And when the deviations from the plan furnished by the contract are made known to the party entitled to insist upon a compliance with it, his assent, as in like cases, may be safely presumed, if he, having opportunity, and having his attention expressly directed to the subject, do not insist upon his rights with such a degree of consistency and firmness as shall amount to a notice of his dissent. A mere complaining of the aberration, while it might have been rectified, followed by conduct and language that indicate acquiescence, will not entitle him, when the work has proceeded too far for remedy, to take advantage of the faulty particular. His conduct in such a case, to be fair, should be decided and intelligible, and the jury were properly instructed to inquire whether assent and acquiescence did not follow any language of complaint or of dissent, which the defendant was shown to have used upon seeing the frame of the building before it was affixed to the soil. Britton v. Turner, 4 N. H. Rep. 481; Wadleigh v. Sutton, id. 15; Hayward v. Leonard, 7 Pick. 181; Smith v. Cong. M. House, 8 id. 178.

The plaintiff was permitted to show, in evidence of the defendant’s assent to the plan of the building, as it was in the course of being erected, that being present he did not, so far as the witnesses heard, make any objection. This is not, perhaps, very strong and convincing evidence of his assent; and yet it is fair that the jury should consider it, and draw the proper inferences as to the fact in dispute. Whether the defendant’s expressions of disapprobation would, under the circumstances, supposing them to have been uttered, have been such as to engage the attention of the witnesses, was a question for them to consider, in giving its proper value and effect to the evidence. Silence in such a case, if proved, would have been a fair ground from which to have inferred the assent which the plaintiff would impute, and silence is a negation which can be established only by such kind of evidence as that which was the subject of the exception. We think that it was properly received.

But its admission furnished no ground for the admission of evidence that on other occasions, and in the hearing of other witnesses, the defendant did dissent, unless there be evidence that the plaintiff heard him. These declarations fall under the general rule excluding the words of a party offered to sustain his own cause, and are not embraced in any of the exceptions to which the rule is subject. The inference to be drawn from the defendant’s silence on one occasion, on which words would have availed something, is too feeble to require to be met by evidence that he was clamorous to no purpose on another occasion.

It does not seem to be an objection to the competency of the evidence of the deceased witness, that it was given at a hearing before arbitrators. We do not understand that the admissibility of such evidence depends so much upon the particular character of the tribunal, as upon other matters. If the testimony be given under oath in a judicial proceeding, in which the adverse litigant was a- party, and where he had the power to cross-examine, and was legally called upon to do so, the great and ordinary tests of triith being no longer wanting, the testimony so given is admitted in any subsequent suit between the parties. Greenl. Ev. 1. It seems to depend rather upon the right to cross-examine, than upoir the precise nominal identity of the parties. Id. An arbitration is a judicial proceeding, and the principle of the rule seems to apply as well to cases of this character as to technical suits at law.

And the admitted testimony of Chase as to what the ‘ witness testified at the arbitration, was material, as showing that the defendant made use of the shed. If one knowingly avail himself of another’s acts, done for his benefit, this will be an admission of his liability to pay a reasonable compensation. Morris v. Surdett, 1 camp. 218, where a candidate made use of the hustings erected for an election. Abbott v. Hermon, 7 Greenl. 118, where a school-house was erected for a district. Hayden v. Madison, id. 76, which was the case of a partial payment for making a road.

The result is that the rulings and instructions of the court at the trial were all, in our opinion, correct, and there must bo

Judgment on the verdict.