Davis v. Hubbard

41 Wis. 408 | Wis. | 1877

Lyoh, J".

Erom the amount of the verdict it is quite apparent tliat the jury failed to find that the plaintiff had performed the contract on his part. Had the jury so found, the verdict would necessarily have been for $100 and interest thereon. The recovery must have been, therefore, on a quantum meruit, pursuant to the instruction in that behalf given by the learned circuit judge at the request of counsel for the plaintiff. Hence, if that instruction was erroneous, the verdict and judgment cannot be sustained.

If the plaintiff failed to perform his contract by the time agreed upon, if any time of performance was specified therein, or, such time not being specified, if he failed to perform it within a reasonable time, it was competent for the defendant to treat the contract as rescinded, and to refuse to allow the plaintiff to complete it, without making himself liable on a quantum meruit for the work already done. But if, within the time for performance (whether that was a specific or a reasonable time), the defendant refused to allow the plaintiff to fulfill the contract on his part, the latter may recover on a quantum meruit. 2 Parsons on Con. (Gth ed.), 678, and cases cited in notes.

The judge overlooked the testimony of the defendant to the effect that the contract required the plaintiff to commence the work immediately, and have the well finished in two or three weeks after the making of the contract; and instructed the jury that there was no time fixed therefor, and hence, that the plaintiff was bound to complete the job in a reasonable time.

If no specific time for the completion of the well was fixed in the contract, the question as to what was a reasonable time for its completion is in the case. This is sometimes a question of law for the court; but when it depends upon disputed facts, it is for the jury, under proper instructions, to determine what is a reasonable time. In the present case, the determination of the question does depend upon controverted allegations of fact, and hence is for the jury. It is unnecessary to set forth the testimony more fully than it is given in the statement of the case. It is sufficient to say that there is testimony tending to prove a state of facts, which, if proved, would in our opinion justify a finding that the defendant refused to allow the plaintiff to complete the well, and that such refusal was before a reasonable time for its completion had elapsed. It may be observed generally, however, that such testimony relates to the time of year in which the well could be used, and the delay of the defendant in performing his part of the agreement also, in putting in a pump and in notifying plaintiff that the well was deficient.

The instruction given on behalf of the plaintiff ignored entirely the question whether the plaintiff was in default when the defendant refused to permit him to complete the well (if he did so refuse), and in that respect it is erroneous. The jury should have been instructed that if they should find that the plaintiff had not performed the contract on his part, they must determine from the evidence whether a specific time was fixed in the contract for the completion of the well; that if none was so fixed, the plaintiff was bound to complete it within a reasonable time after the contract was made; that they must determine what was a reasonable time therefor in view of all the circumstances of the case as proved on the trial; and that if they should find that the defendant refused to permit the plaintiff to complete the well, and such refusal was before a reasonable time to do so had elapsed, the plaintiff is entitled to recover what the woi’k done by him under the contract was reasonably worth.

We have considered the case as though the complaint I contained a cause of action on a quantum, meruit, which it does not. As there must be another trial, it is not necessary to consider the question of pleading discussed by counsel. The circuit court will doubtless permit all proper amendments to be made, and the plaintiff, if so advised, may add a count on a quantum meruit to his complaint.

It is not deemed necessary to consider other points discussed in the arguments of counsel.

By the Gowrt. — Judgment reversed, and cause remanded for a new trial.