Holland v. Rhoades

106 P. 779 | Or. | 1910

Mr. Justice Slater

delivered the opinion of the court.

1. But two questions are presented for decision. The first arose upon a refusal of the court to permit defendant to state the terms of the contract for the construction of the cottages, to the effect that their mutual understanding was that plaintiff was to proceed with the construction of one house until it was. inclosed, with the privilege of constructing the other two at defendant’s election. This was not within the issue made by the pleadings.

2. By the contract alleged in the complaint and admitted by the answer, plaintiff had the right to erect, and defendant was bound to take and pay for, three one-story, five-room cottages. No privilege was reserved therein to the defendant to withdraw from the contract when one building had been erected; he was bound to a full performance, unless excused by a mutual rescission, or by a rescission by himself, based on a default of the plaintiff. He chose to defend upon the ground of a mutual rescission, and that was the only issue to be tried.

3. The evidence offered does not tend to the proof of a mutual rescission of the contract assumed to be in force between the parties, but of his understanding of what terms the original contract itself consisted at the time it was made, and before it was reduced to writing. The testimony not only contradicts the admissions and averments of the answer, but also varies the terms of the written contract .itself, which was introduced in evidence, and is in the record. It needs no citation of authorities to sustain the proposition that defendant was thus precluded, by the admissions contained in his answer, as well as by the writing, constituting the sole evidence of the contract, from making such proof.

4. It is argued, however, that it was admissible because it would tend to explain plaintiff’s and defendant’s actions, occurring at the time of the alleged rescission. The record does not contain any of the evidence constituting the alleged rescission, and hence we cannot judge of that matter, but the argument of counsel is evidently based upon the assumption that the parties, at the time of the alleged rescission, must have acted upon the idea that defendant had the right, by previous contract, to withdraw therefrom. In other words, defendant sought to prove a personal right to rescind by parol proof of a stipulation, made at the time of the negotiation of the terms of the original contract, which stipulation was not included in the written agreement. But the right to rescind is distinct from the fact of rescission: Seanor v. McLaughlin, 65 Pa. 150 (30 Atl. 717: 32 L. R. A. 467). The former does not constitute an element of mutual rescission, which is the discharge of both parties from the obligations of a contract assumed to be in existence and to be legally binding, by a new agreement made by them subsequently to the original contract, and before performance thereof is due. 9 Cyc. 593. There was no error in rejecting the testimony.

5. There was received in evidence testimony, offered by plaintiff, tending to show the cost of the construction of the cottage built by him, so as to exhibit the profits that he would have made had he constructed the remaining two cottages. The question arose as to whether the cottage, erected by plaintiff, had been constructed in a good, workmanlike manner, in accordance with the terms of the contract; the defendant claiming it had not been so constructed, so the question as to what was meant by the terms “good, workmanlike manner” became material to the cause. The court gave this instruction:

“Good and workmanlike manner means in such a way that a workman of average skill and intelligence, the conscientious workman, would do the job. It is good average work. Workmanlike, is good, average work. It is good work, taking a man of average skill, not a wood-butcher on one hand, nor the very highest skill on the other, but a man of fair average skill as a carpenter; what a man of fair average skill would do. That is, what is considered the work of a man of good, workmanlike ability would do. It is for you to determine that.”

Defendant excepted to the instruction, claiming that “good, workmanlike manner” means more than good average work, or the work of a man of fair average skill as a carpenter. But we are of the opinion that the instruction is substantially correct. “Workmanlike” is defined in the Century Dictionary to mean: “Like or worthy of a skillful workman; hence, well-executed; skillful” — and skillful is defined as “having ability in a specified direction ; experienced; * * practiced.” But there are different degrees of skill, and when the parties used the qualifying adjective “good” to denote the degree of skill demanded in the performance of the contract, they thereby recognized that difference, and signified it was not the highest skill known to the trade of carpentry that was to be used, but a fair average skill, when considered in relation to the character of the work to be done.

The judgment is affirmed. Affirmed.