Lewis v. Blanchard

8 Mart. (N.S.) 290 | La. | 1829

Martin, J.

delivered the opinion of the court. The petition states, that the defendant employed the plaintiff to build a gin for him, and agreed to pay him three hundred and fifty dollars, at any time he should want them to pay his workmen. He sued for that sum. The defendant answered, that the plaintiff had proceeded in the work in so inartificial and unworkmanlike a manner, that what he had done was of no use, and the defendant’s timber was spoiled.

The plaintiff had a verdict and judgment, and the defendant appealed, after an unsuccessful attempt to obtain a new trial.

On the trial, the court charged the jury, “that, according to the contract, which was the law between the parties, the defendant had engaged to make an advance, to which the plaintiff was entitled, unless he had entirely abandoned the work; to that advance he was entitled, whatever might be the value or quality of the work done, at the time he demanded the advance; that the consideration could not be said to have failed, and the defendant had her remedy, if the work was not completed according to the contract, either by a direct action, or by withdrawing the last instalments, if it appeared the consideration had failed.” To this charge the defendant’s counsel excepted.

We think the judge erred. It is an implied condition of every contract, that the work contracted for shall be done in a sufficiently workmanlike manner, and the materials furnished shall not be spoiled. Had the plaintiff called for the advance, he had stipulated for, before he had done any work, his claim could not have been refused, for the defendant had promised to make the advance at any time. But if he spoiled the defendant’s timber, and the work he made was insufficient and unworkmanlike; he failed in complying with his part of the contract, and thereby gave the defendant a right to refuse a compliance with her part, and she was not bound to wait till the plaintiff left the work or completed it, in order to sue him for damages, or withhold the second instalment, which might not afford a sufficient remedy.

Thomas and Flint for plaintiff, Boyce for defendant.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, the verdict set aside, and the case sent back for a new trial, with directions to the judge, not to give to the jury the charge excepted to—the appellee paying costs in this court.