Collings v. Hamilton

| La. | Feb 15, 1840

Morphy, J.,

delivered the opinion of the court.

The plaintiff seeks to recover one thousand six hundred and twenty, dollars seventy-four cents, for work and labor done for defendant, in the erection of a large cotton-gin. An account is annexed to his petition, showing the details of the work and the prices for each item, which prices the plaintiff avers defendant assumed and promised to pay. This claim is resisted on the ground, that plaintiff undertook to build a complete gin-house and put up a press for him for one thousand five hundred andn twenty-six dollars twenty-four cents, 1 J 11 on defendant furnishing all the necessary materials; that the work was so badly and unskillfully executed that defendant had to expend large sums of money to prop and sustain the roof, and remedy divers other defects; and moreover, that the work was delivered long after the time agreed on, by which delay defendant has suffered material injury.

Where the plaintiff sues to recover thevalue of work and labor done for the defendant, according; to a bill of prices agreed on for part of it, and for extra work, he will be allowed to produce testimony of the value of all the work performed. In an action on a special agreement for the price of work, or services rendered, the party may introduce proof of the value also.

This issue was placed before a jury, who gave their verdict for the plaintiff; after a fruitless attempt to set it aside, the defendant took this appeal.

On the trial, plaintiff’s counsel called on defendant to produce a bill of the prices agreed on between them for the work to be performed, and at the same time offered witnesses to prove the value, no.t'only of those items in his account, which were mentioned in the bill of prices, but also of several other charges for extra work. This was objected to by defendant’s counsel, on the ground that the bill of prices being proved to be a contract, the plaintiff, on a quantum meruit, could not offer evidence of, or recover the value of the work. The court overruled this objection, and the defendant calls our attention to his bill ofexceptions to that opinion. We think that the judge decided correctly. The bill of exceptions assumes that this action is entirely one on a quantum meruit; such is not the fact. The plaintiff can be considered as claiming on a quantum meruit only for the extra work, not mentioned in the bill of prices. As to all the other items of his account, he claims these prices which, he avers, the defendant assumed and promised to pay. It has frequently been decided by this court, that an agreement for the price of services does not preclude proof of their value. 4 Louisiana Reports, 115, Gourjon vs. Cucullu; 4 Martin, N. S., 178, Boyd vs. Howard; 8 Martin, 402, Gilly vs. Henry. But defendant contends that this bill of prices being a contract, must be adhered to, and that plaintiff can make no extra charge. It undoubtedly is a contract so far as it goes; it is a naked enumeration of the prices of work to be done, the prices to be paid for each item, and shows a total sum of one thousand five hundred and twenty-six dollars twenty-four cents, for all the works therein detailed. Defendant’s witnesses, when speaking of the contract entered into by the plaintiff all refer to the bill of prices as showing the extent of his engagement, but none of them pretended that he was bound to do any thing not specified in it. No mention is made in that paper of the several items of extra works set forth in plaintiff’s account, and among them is a large and important one, to wit: the building and putting up of a press. These additional prices of work were received by defendant, and could not have been executed had he not furnished the material; they must, therefore, be considered as done by his order. 4 Louisiana Reports, 101, Andrews vs. Jacobs; Louisiana Code, 2735.

From the testimony in the record, as to the manner in which the whole work was executed, we have derived the impression that it was well done, with the exception of a few defects, to remedy which, the defendant has had to expend one hundred and fifty dollars. This deduction, we think, should have been allowed, together with a sum of fifty-six dollars, which is an overcharge in plaintiff’s account. Fifty-six squares of joist are set down at three dollars per square, when the bill of prices authorized only a charge of two dollars per square. As to the delay defendant complains of, the evidence shows that no particular time had been fixed ; and moreover, that the defendant has in some measure been himself the cause of the delay, by interrupting plaintiff and taking him off to work on a dwelling house of his during four months.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed ; and that the plaintiff do recover of defendant thirteen hundred and fourteen dollars and seventy-four cents with costs below, and that the plaintiff and appellee pay the costs of this appeal.