McClay v. Hedge, 18 Iowa 66

McClay v. Hedge

18 Iowa 66 | Iowa | 1864

Dillon, J.

1. Contract: breach: quantum meruit. I. This cause does not involve much in amount, but yet presents a legal question of the highest importance, and one in relation to which the best jurists and the ablest legal thinkers almost radically differ. It is found by the referee that the plaintiff has not performed in full his contract. It is not found that the defendant waived, prevented or dispensed with its performance. Not having performed the special contract, he cannot recover (so all of the authorities agree) on the contract. Eyser v. Weissgerber, 2 Iowa, 463, 483, and cases cited; Corwin v. Wallace, 17 Id., 374, referring to previous adjudication of same case. The controversy is, whether *68in such a case he may recover as upon a quantum meruit. This question was settled in this State by the case of Pixler v. Nichols, 8 Iowa, 106, which distinctly recognized and expressly followed the case of Britton v. Turner, 6 N. H., 481. That celebrated case has-been criticised, doubted and denied to be sound. It is frequently said to be good equity, but bad law. Yet its principles have been gradually winning their way into professional and judicial favor. It is bottomed on justice, and is right upon principle, however it may be upon the technical and more illiberal rules of the common law, as found in the older cases. With the known and natural disposition of courts and juries to disfavor the cause of him who has broken his contract, and yet seeks a recovery, and with the limitations stated in Pixler v. Nichols, the application of this rule will not be found practically to work injustice to the employer or contracting party, who is withóut fault. This rule will apply to such cases as the one under consideration, a formal acceptance of the work, or an acquiescence in the breach, is not necessarily essential to a recovery. But the defendant contends that the plaintiff can only recover so much of the contract price as remains after deducting what it will cost to make and complete the work as he agreed. Granted. The report of the referee shows that he recognized this sale by deducting from the contract price what it was worth and would cost to complete the contract work.

2. Evidence: interrogatory. II. The defendant insists, however, that the referee violated this rule, and therefore erred in certain rulings made, excluding testimony offered by him on the trial.

On the trial the defendant inquired of a witness, a carpenter by trade, “what it would cost to make the barn a good and workmanlike job, according to the contract testified to by the plaintiff?” This was objected to by the plaintiff, and the objection was sustained. One fault with *69the question consists in this, that it requires the witness to put his own construction upon the plaintiff’s testimony as to the contract. If the question had correctly recited the testimony of the plaintiff in reference'to the contract, the inquiry made would doubtless have been proper if it was a conceded fact that the barn was not, as it was left by the plaintiff, a good and workmanlike job. See Grinnell v. M & M. R. R. Co., infra.

3. - Assumption of fact. The referee also refused to allow the same witnesses to testify “ what it would be worth to make the roof of the barn a good one.” The appellant has not seen fit to bring before us the whole evidence; this might show that it was a disputed question on the trial, whether the roof was or was not a good one; and if so, the interrogatory was objectionable in assuming that the roof built by the plaintiff was a bad one. The same principle applies to the inquiry made of the witness in relation “ to the cost of making the shed a good and workmanlike job.” And so with reference to the other inquiry: “ What would it cost to make the frames of the doors as the plaintiff agreed to make them ?’’ This question, like the first one above noticed, was exceptionable: 1. Because it asked the witness to construe the plaintiff’s agreement; and, 2. Because it assumes that the plaintiff did not comply with his agreement in this respect.

In the absence of the whole testimony, and especially in view of the referee’s report deducting from the amount of the plaintiff’s recovery the cost of completing the work according to the contract, it is fairly inferable, that these questions were rejected, not upon their merits, but in consequence of the form in which they were framed. The substance of these, for aught the record discloses to the contrary, may have been testified to by the same witness in answer to proper questions, as it is certain from the report *70that the matters thus inquired about were testified to by witnesses and considered by the referee.

Perceiving no error which will justify us in reversing the judgment in a cause which appears to have been very carefully tried, and wherein justice seems to have been done, the judgment of the District Court is

Affirmed.

Cole, J., having been of counsel in the court below, did not sit in the case.