Greenwood Lumber Co. v. Lanham, 91 So. 703

91 So. 703 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Appellee, Joe Lanham, instituted a proceeding in the circuit court of Leflore county under chapter 81, Code of 1906, section 3058' et seq. (Hemingway’s Code, chapter 44, section 2418 et seq.), to establish a mechanic’s lien on a residence and lot owned, when the materials were furnished and the work done for which appellee brought this suit, by appellant, J. B. T-Taman, and later, and at the time of the trial, by appellant Greenwood Lumber Company, and recovered a judgment, from which appellants prosecute this appeal.

Appellant Haman, then the owner of the house and lot on which a mechanic’s lien was sought to be established, on July 15, 1919,- entered into a contract in writing with the appellee, Lanham, by which the latter agreed to furnish and install in the residence of the former, which was then being built, all of the usual plumbing fixtures, consisting of bath tub, lavatory, closet, sink, faucets, heater, etc., for which the appellant Haman agreed to pay when completed, according to contract, the sum of four hundred dollars. It is shown by the evidence that appellee completed the contract, and the job was accepted by appellant Haman, who thereupon moved into the residence. Later the appellant Greenwood Lumber Company became the owner of the residence.

In the absence of appellant Haman and family, appellee went into his (Hainan’s) residence by means of raising a window, and tore out and carried away all the fixtures which he had installed therein under said contract which could be removed, and after doing so instituted this mechanic’s lien proceeding to recover the whole contract price of four hundred dollars. It was shown on the trial that the value of the fixtures so removed by the appellee was one hundred and thirty-two dollars. At the conclusion of the evidence the court instructed the jury peremptorily to return a verdict for the appellee for two hundred and sixty-eight dollars with interest, being the amount sued for less the value of the said fixtures so removed.

Appellants assign that action of the court as a ground of error, as well as the refusal by the court of instruction No. 2 asked on behalf of the appellants, which, under the evidence in the case, amounted to a peremptory instruction to the jury to find for appellants. Appellants contend that appellee was not entitled to recover because he had not complied with his contract.

We believe the authorities are unanimous in holding that a contract of this character is an entirely, and cannot be apportioned, and that no recovery thereon can be had by the party guilty of its breach. He cannot recover on the contract itself because he has failed to perform it, nor can he recover upon a quantum meruit because of the existence of the contract. One ivho contracts to furnish materials and do labor for a fixed sum cannot abandon the work and recover for the labor performed and materials furnished. Timberlake v. Thayer, 71 Miss. 279, 14 So. 446, 24 L. R. A. 231; Butt v. Williams (Miss.), 15 So. 130; Wooten v. Read, 2 Smedes & M. 585. Applying this principle to the present case, it seems plain that the appellee was not entitled to recover. It cannot be said that he had performed the contract.

It is true the contract had been completed by him, and he was entitled to the contract price up to the time he took the law in his own hands and went into the residence of appellant Haman and tore out and took away part of the fixtures he had installed. But when he did that it amounted to undoing what he had theretofore completed. In other words, after the appellee had removed the larger part of the fixtures in the manner stated, the contract was incomplete so far as he was concerned. The fact that appellant Haman was in default in making payment for the work done and materials furnished did not give appellee license to do what he did. He had his remedy under the law, and should have pursued it. He adopted instead the might of his own good right arm, and, wherein that remedy failed him, he must stand the loss. This is a case where the appellee must stand on his contract, as well as on the remedy for its enforcement first adopted by him. If these have proven inadequate, he has up one to blame but himself. It follows from these vieAVs that the trial court erred in directing a verdict for appellee, and in refusing to give instruction No. 2 asked by appellants, which in substance was a peremptory instruction for appellants.

Reversed, and judgment here for appellants.

Reversed.