158 Mich. 214 | Mich. | 1909
Lead Opinion
(after stating the facts). There are a great many assignments of error, only a few of which will be considered. It is claimed by defendant that no testimony on the part of the plaintiff should have been received, because of the fact that the plaintiff never received his final estimate from the architects or the school board, and neither alleged nor proved that the same was fraudulently withheld from him. In support of this position defendant cites Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and other cases. We are of the opinion that all the cases cited upon this proposition are clearly distinguishable from the case at bar.
As already pointed out, the defendant discharged the architects on September 13, 1906, several months before
Error is assigned upon the admission of Exhibit No. 24, which was an offer on the part of the defendant to pay to plaintiff $750 in settlement of his claim. The exhibit was admitted over the specific objection on the part of the defendant that it contained an offer of compromise and was for that reason incompetent. The court remarked that the offer made in the exhibit was not binding on the defendant, but failed to state that it was not an admission of liability. It should have been excluded. Montgomery v. Allen, 84 Mich. 656 (48 N. W. 153).
Error is assigned upon that portion of the charge of the court covering the measure of damages, which was in part as follows:
“The plaintiff claims $3,056. If you find that he has failed to live up to the terms of the contract, that the building which he has furnished is not such a building as was contracted for, then you will deduct from this claim of the plaintiff such sum. as will make it such a building as he contracted to furnish in value. In other words, you will require him to do those things which he ought to have done under the terms of the contract. Not having
The vice of this instruction is that it assumes that all the plaintiff was bound to do was to furnish a building worth the contract price, whereas he was bound to furnish a building according to the plans and specifications, even though it were worth many hundreds of dollars more than the contract price. Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications. Eaton v. Gladwell, 121 Mich. 444 (80 N. W. 292), and cases cited.
Many other errors are assigned, but they are not discussed, as they are not likely to arise upon another trial.
Judgment reversed, and a new trial ordered.
Rehearing
ON MOTION EOR REHEARING.
On an application for rehearing, our attention is called to the fact, that, in the opinion herein, ante, 314 (133 N. W. 534), no mention is made of the claim of defendant to stipulated damages, by reason of the failure of plaintiff to perform his contract within the time limited by the contract.
Section 35 of the contract is as follows:
“It is further agreed by and between the parties hereto, that in case the said building shall not be completed and the said building not finished on or before the first day of August, A. D. 1906, according to the terms and condi
Upon this branch of the case, the learned circuit judge charged the jury as follows:
“It is undisputed that the defendant went into possession of the building September 4th, and claims damages of ten dollars per day between August 1st and September 4th. Is that the extent to which you claim ?
“ Mr. Hawley: Yes.
“ The Court: I charge you, gentlemen, after August 15th, the plaintiff would have a reasonable time in- which to get the glass and the sash as required by the architect. On July 27th, he notified the architect, and the defendant in this case relied in part upon the order of the architect to the plaintiff to proceed to make these repairs or make these changes as provided by the contract, and after August 15th the plaintiff would have a reasonable time in which to get the glass; this will practically do away with the claims for liquidated damages, because he could not proceed to get it as he made his demand on July 27th, and was not notified of it until August 15th, after which he would have a reasonable time. It is for you, however, to
The defendant claimed the sum of $280.00 for 28 secular days’ delay, from August 1st to September 4th. The provision of the contract was a valid one. Whiting v. Village of New Baltimore, 127 Mich. 66 (86 N. W. 403); Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78); Wilson v. Godkin, 136 Mich. 106 (98 N. W. 985).
The jury should have been instructed that this sum was properly chargeable against plaintiff, unless they found the delay to have been the result of one or other of the causes enumerated in section 25 of the contract, as proper excuse for delay.
It was plaintiff’s claim that defective glass was not seasonably inspected and condemned by the architects. This claim is not tenable. It was his duty to furnish glass according to the contract, and he cannot excuse his delay in doing so by showing that defendant’s architects failed to condemn it in time to permit him to replace it within the time limited by his contract.
