121 Minn. 280 | Minn. | 1913
This case is here for the second time upon appeal and cross-appeal ; the plaintiff appealing from the order of the court denying his motion for judgment notwithstanding the verdict, awarding him $500 upon his claim of $1,212.36, or for a new trial, and the defendant appealing on the same ground. The issues made by the pleadings are sufficiently stated in the report of the former appeals, contained in 114 Minn. 523, 524, 131 N. W. 1133. The contract sued on was for the driving of several million feet of logs for a gross compensation, and contained a provision that the logs should be driven and delivered separate from any other logs.
Under the evidence it conclusively appears that the plaintiff did not strictly perform the contract, in that he did not, as required thereby, “drive, tow, and deliver” the logs specified therein “separate from any other logs,” and it appears that he allowed them to become intermingled with logs in charge of Blake & Hawkins, other drivers, who subsequently filed a lien under E. L. 1905, § 3535, for driving and separating them, for which they recovered judgment against the defendant, and that while the plaintiff delivered the amount of logs called for by the contract, a large number of them were not the identical logs specified by the contract, and which he had undertaken to drive, deliver, etc., to the defendant. The plaintiff, therefore, having declared upon an express contract, which has not been strictly performed, must recover, if at all, under the doctrine of substantial performance, which, contemplates that the defendant may recoup any damages suffered by reason of the plaintiff’s failure of strict performance. In such case he cannot recover upon a quantum meruit. Johnson v. Fehsefeldt, 106 Minn. 202, 118 N. W. 797, 20 L.R.A.(N.S.) 1069. Nor can he be awarded full payment as for a strict performance, without regard to the damages suffered by the defend
But it does not follow that the defendant’s motion for judgment in its favor should prevail under the evidence. This is, we think, a case to which the doctrine of substantial performance may be applied, and there was evidence tending to show such performance. Johnson v. Fehsefeldt, supra, Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L.R.A. 52, and Ecker v. Isaacs, 98 Minn. 146, 107 N. W. 1053, are not, therefore, in point; nor is this a case where .a wilful abandonment is conclusively shown, in which event no recovery at all could be had. See Johnson v. Fehsefeldt, supra. This controversy must be determined upon the principles above stated, and as declared in Leeds v. Little, 42 Minn. 414, 44 N. W. 309, and in Gray v. Village of New Paynesville, supra, and upon the question of variance raised in connection with the defendant’s motion for judgment, the case is controlled by Sykes v. City of St. Cloud, 60 Minn. 442, 454, 62 N. W. 613, where the distinction between substantial and partial performance as a basis of recovery is indicated.
The second aspect of the point under consideration, however, presents something more than the admissibility of evidence upon am issue of substantial performance. It is an inseparable component of the right to recover for such performance that the party against whom it is urged shall be compensated for his loss resulting from the-failure to perform strictly, and if the claim of the defendant concerning the intermingling of the logs and its forced payment to Blake- & Hawkins, as to which there seems to be no dispute, is well founded, then the defendant in justice should, if substantial performance is. established, be allowed to recoup such sum as it would legally be compelled to pay them in the premises, not to exceed, however, the amount, it was actually required so to pay. It was the duty of the plaintiff under the contract to deliver the logs as he had agreed to do, and if through any cause, while in the performance of such duty, he incurred liability for which the defendant was bound, and for which-, it has been compelled to respond, he, and not it, should bear the burden; but this liability cannot be established by the judgment referred to, for the plaintiff was neither a party to nor bound by the-same.
If, on the other hand, the plaintiff has any claim for services performed for the defendant other than those stated in the complaint,, such cannot- be litigated under these pleadings. The defendant’s, answer is defective, in not alleging the value of the services of Blake- & Hawkins. In order, however, that this controversy may be brought to a close, we think that an amendment of the answer should be allowed in the respect referred to. When this is done, the lien statement and also the judgment set up in the answer will be competent-evidence to show, respectively, that such claim was actually made and judgment entered thereon; but neither should be exhibited to the-jury, nor should the jury be advised of the amount of either.
There is no evidence in this record to warrant the submission of
We have directed attention to many of the matters above referred to at the request of the parties and in view of a new trial.
Orders reversed on both appeals, and a new trial granted.