28 Mich. 432 | Mich. | 1874
In 1869 Busli and Pattison constructed the International Hotel at Kalamazoo, for Davis, and in 1870 they sued him on the quantum meruit for the labor and materials. He set up in defense that the service and materials sued for were rendered under a special contract which fixed the price at thirty-one thousand dollars; that he had paid this price, and further,.that there were defects which entitled him. to recoup damage. The jury, under the instructions of the court, found against him, and he caused a bill of exceptions to be settled, and removed the cause hither by writ of error. The exceptions are very numerous. A large number are quite unimportant, and would never justify discussion. Very many relate to mere discretionary rulings, and several refer to questions which, however decided, could have produced no legal prejudice.
The stress of the case was upon whether, in the state of things which existed, the defendants in error were entitled to go upon the quantum meruit or had restricted themselves tó a definite price, and a large mass of verbal testimony was given on this subject.
This testimony was contradictory in itself, and some of
■' It is fair and reasonable to assume that these parties in denying that there was any contract, intended simply to assert that no price was agreed upon. Because the theory of their action as well as many uncontested facts implied ■ the existence of a contract having greater or less scope. The defendants in error were actually employed, and for the entire thing. The business was not undertaken or carried on as piece work. There were plans, specifications, and estimates, and these plans and specifications were designed as guides. Davis claimed that it was agreed that some changes might be made if he should desire any. The whole 'case shows clearly that there was an express agreement which covered some portion of the transaction. The final controversy was, in substance, whether the parties had so conducted that the price had become settled and fixed, or whether that was a matter still at large and subject to be measured by market value. In the outset the parties talked about the cost. This is certain. Mr. Pattison testified. that Davis came to the shop and said he had been talking with
It does not become necessary to inquire how the jury should have been instructed to interpret this part of the transaction, if the circumstances warranted the opinion that Bush and Pattison knew that Davis understood that they assumed the job at the price fixed by their estimate. — 2 Kent, 557; Barlow v. Scott, 24 N. Y., 40 ; 1 Parsons on Con., 5 ed., 475 and notes, and 477 and notes; Fry on Spef. Per., 135-145, 2 Am. ed., and notes; Hartford & New Haven R. R. Co. v. Jackson, 24 Conn., 514; Allen v. McKean, 1 Sum., 276, 304-310.
The paper plans, specifications, estimates, and an instrument dated July 5, 1869, containing certain receipts and recitals, were given in evidence. Most of these, and especially the last paper and the formal specifications, were ■drawn up when the work was in progress.
The court allowed the jury to take all the papers into •consideration as facts with others to enable them to decide whether the parties did or did not come to an express .agreement as to the price ; but expressly directed them that the matters contained in the paper of the 5th of July, 1869, did not constitute such a contract, and further, that such paper did not preclude the defendants in error from claiming that in fact there was no such contract.
The point upon the propriety of the instruction to the jury will be more apparent by an inspection of the paper of the 5th of July, as set forth in the bill of exceptions. It reads as follows:
“Received of E. H. Davis seventeen thousand two hundred and twelve and thirty-nine one hundredth dollars, as follows: May 6, 1869, twenty-five hundred dollars; June 2, 1869, three thousand and one hundred and sixty-six dollars; July 5, 1869, Penfield mortgage for ten thousand dollars, interest thereon from January 1, 1869, five hundred dollars; H. S. Parker & Co.’s note, one thousand dollars, interest thereon forty-six and thirty-nine one hundredth dollars, the same to apply on building contract as per plan and specifications made by Bush and Pattison, the same amounting to thirty-one thousand dollars, as follows:
Davis house, corner of Burdick and Dutton streets..$7,000
Penfield mortgage $10,000, interest and cash $14,000...24,000
Total.........................$31,000
July 5, 1869. Bush & Pattison.
$500. Received as per contract five hundred dollars, July 7, 1869.
$7,000. Received as per sale of house, seven thousand dollars, July 15, 1869.
$2,550. Received as per-twenty-five hundred and fifty dollars, July 23, 1869.
$2,834. Received as per-twenty-eight hundred and thirty-four dollars, August 3, 1869.
Bush & Pattison.”
The defendants in error insisted that it was a mere voucher or receipt, and entitled to no higher or fether consideration than would be due to a bare acknowledgment of defendants in error of the receipt of so much money from Davis on the work and materials. It does not appear what precise view the court below took of the instrument. He, however, expressly told the jury that it did not constitute a contract, and, as already stated, that it did not preclude the defendants in error from claiming that there was in fact no contract.
We cannot concur with the court below in this position. We think it was incorrect and misleading. The instrument was undoubtedly, as claimed by defendants in error, a receipt. But it was something more, and it had a special bearing upon the rights of the parties in the pending litigation, beyond that of a mere general receipt of money for work and materials supplied and used in connection with the particular building.
Of course it was not the embodiment in writing of a contemporaneous agreement, unless it was the result of some understanding then reached, and it does not appear that the parties were then treating to agree upon terms.
It appears to have been drawn in reference to a preunderstood arrangement, an arrangement which the parties recalled to their attention when the writing was made. There is no suggestion or indication that it originated in any fraud or mistake, and the signs are that it was deliberate.
Whether it is susceptible of being considered as the
It expressly declared what the contract relation of the parties was understood to be in respect to price, and plainly imported that the defendants in error were entitled to a fixed price, namely, thirty-one thousand dollars, and not an indefinite amount for the job; and by consequence as plainly negatived the prbposition that they were authorized to claim some indefinite compensation, some amount or price-dependent upon the state of the market. Upon the footing of this explicit declaration and admission that their demand was considered as specific and not one upon quantum meruit, Davis paid, and they deliberately received and acknowledged nearly thirteen thousand dollars.
Was1 it admissible for the defendants in error after such declaration and admission, and after such payments and receipts upon the basis of it, to shift their ground and take-an inconsistent position? Were they at liberty to say that having got all they could by putting one face upon the transaction, they would then repudiate as one no longer of service to them the status they had thus admitted, and put forward another and inconsistent position and relation in order to get more?
Unless we depart from settled principles, these questions must be answered in the negative, even though we should feel that defendants in error would have been warranted in Bteadily standing out from the beginning for-a different measure of compensation. If they meant eventually to contend that their true contract relation with plaintiff in error was one giving them the right to require him to pay according to the standard of market value because no price-was settled upon, they should have acted, in dealing with him about the rate and in receiving pay, consistently with that construction of the transaction, or at least they should have avoided the contradictory and misleading course which was taken.
The jury were therefore wrongly instructed on this vital question, a question upon which the case most probably turned, and on that account the judgment must be reversed, and a new trial ordered.
As there is little reason to suppose that any of the other points which are worth considering will come up on another trial, their discussion is waived.