Ganong v. Brown

40 So. 556 | Miss. | 1906

Whitfield, O. J.,

'delivered the opinion of the court.

We do not think the contract in this case was an entire one. We approve the statement of the law on this subject announced in Baily v. DeCrespany, L. R., 4, Q. B., 180, which is as follows: “Whether a contract is entire or divisible cannot be determined by a single term, phrase or sentence, though the same be large enough to include such meaning, unless throughout the whole agreement, the surrounding circumstances, and good sense and justice of the case it definitely appears that it was the intention of the parties to the contract that it should be entire and indivisible.” Applying this principle to the writing in the case, to all the circumstances surrounding the making, of the contract, we do not think that this contract can be properly held to be an entire contract. It was well said by counsel for appellant that the word “completed,” in the phrase “to be completed in a workmanlike style for the sum set opposite,” does not mean that nothing is to' be paid until the job is finished, does not refer to a limit of time with regard to payment, but means that the work throughout is to be done in a workmanlike manner. After the appellant had put great value into the building by his labor and materials, the building without his fault was destroyed by fire.' The day before the fire Ganong gave an order on Brown in favor of Guy & Press-grove for material in the sum of $70. While it is true that Brown did not pay this, it is a very pregnant circumstance, showing Ganong’s construction of the contract and conduct under it. A few days before the fire Brown insured the property “as a finished building” for his own benefit. This was equivalent to a declaration that the entire property was his, and he received $5,000 insurance, full payment on the whole loss, the property being treated as a finished building. Partridge v. Forsythe, 29 Ala., 200.

It would be in the highest degree inequitable to permit Brown, with the full value of the building, treated as a completed and finished building, in his pocket, to refuse payment to appellant for the labor and materials which put the building into a condition so far finished as that Brown and the insurance company dealt with it as completely finished. Cook v. McCabe, 53 Wis., 250 (10 N. W. Rep., 507; 40 Am. Rep., 765). The authorities are so well collected in the brief of counsel for appellant that we will content ourselves with a simple reference to them. We think the plaintiff is entitled, to recover.

The judgment is reversed, and the■ cause remanded.