112 F. 634 | 6th Cir. | 1902
after making the foregoing statement,, 'delivered the opinion of the court. The defendant’s assignments of error all refer to the exclusion of the defendant’s second defense from the• pleadings and from the consideration of the jury; the refusal of the .court below to strike out the allegations relating to waiver of delivery in 30 days, and readiness to perform on the part of the plaintiff; the exclusion of testimony tending to show a well-known and universal' custom that, in the absence of an express agreement to the contrary, payments in this class of contracts shall be made from the first estimates furnished the contractor; and the refusal of the court to charge the jury that failure to furnish the whole amount of tile contracted for, precluded a recovery for any part delivered, unless delivery had been waived or prevented by the defendant.
i.-The contract provided for furnishing 23,000 feet of tile, and the plaintiff knew that it was ordered for the purpose of being laid in the Washington county court house. None of this tile was shipped within 30 days, as provided in the correspondence, owing to failure on the part of the defendant to furnish shipping directions. It was, however, shipped as ordered by the defendant, who was urged by the plaintiff to send shipping directions, so that the tile might be gotten out of its wray. Under the testimony in the case, there seems to be no foundation for the allegation that a failure to furnish tile prevented the defendant from performing his contract with the Washington county commissioners, and in the pleading which was stricken out, and the amended pleading which remained, such an allegation seems to have been carefully avoided. It is alleged that a failure to deliver the tile gave the county commissioners an excuse for their action; and “thereupon, alleging that the defendant was unable to finish his contract within the time fixed by his contract with said commissioners by reason of not having sufficient material there, and his inability to get it in time, the said county commissioners declared the said contract forfeited.” This does not allege that a failure to- deliver the tile prevented the defendant from fulfilling his contract with the county commissioners, but only that the county commissioners so alleged, and such a defense iievér seems to have been thought of until this action was commenced. The correspondence in regard to the payment of plaintiff’s bill for the tile furnished is devoid of any intimation that all the tile had not been shipped as ordered, or that any failure to ship tile had embarrassed the defendant in fulfilling his contract. If this was the reason payment was not made, it should have been stated when the voluminous correspondence on that subject took place, and not for the first time in a pleading after litigation had begun. Railway Co. v. McCarthy, 96 U. S. 258, 24 L,. Ed. 693. There was no error in striking out this defense from the first answer and cross petition, as it was not properly pleaded, and there was no error in táking it from the consideration of the jury on the trial, as there was no evidence to support it.
,;2.: The amended answer set up a contract, and averred plaintiff’s failure to perform it, and alleged large damages for such failure, which
3. The testimony in regard to the custom of making payments on contracts of this character from the first estimates given the contractor was properly excluded. The proof of such a custom is admissible for the purpose of showing that the contract was entered into with reference to it, and it, therefore, became a part of the agreement. Even if the witnesses were qualified to testify to the existence of such a custom in the trade, the letter written by the defendant, in which he stated that he was ignorant of the custom in making such settlements, made the testimony inadmissible, because it showed affirmatively that the contract was not made with reference to such a custom as he sought to show existed. Evidence of a usage is not admissible if it appears that it was unknown at the time of the contract to the party setting it up and seeking its benefits; for in such a case there would be no presumption that the contract was made with reference to it. Lawson, Usages & Cust. 58; Silk Co. v. Fair, 112 Mass. 354; Daun v. Brewery Co., L. R. 8 Eq. 155-
4. The requests to charge presented by the plaintiff, and refused by the court below, were based on the theory that, the contract being entire, no recovery could be had for the tile delivered, accepted, and placed in the building, unless the delivery of the balance covered by the contract had been waived or prevented by the defendant. These requests are based on the cases which hold that nothing can be recovered for part performance of an entire contract unless full performance has been waived or prevented, which cases are collected in note 19 to section 1032, 2 Benj. Sales, where the more modern rule laid down in Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, and followed by the great weight of authority in this country since, is also discussed and approved. This rule is that a party who* has failed to perform his contract in full may recover compensation for the part performed, less the damages occasioned by his failure. The contract here was for the sale and delivery of tile, of which 19,752.5 feet were delivered and accepted, and the plaintiff was entitled to payment for the tile actually received and appropriated by the defendant, less the damages occasioned by his failure to deliver the- balance. 2 Benj. Sales, § 1032, and the large list of cases cited in note 19; Saunders v. Short, 30 C. C. A. 462, 86 Fed. 225, and cases cited in that opinion.
There was no proof of damages sustained by failure of plaintiff to deliver the remainder of the tile, and the instruction .of"the court to render a verdict for the tile delivered, less the amount found to be defective* was correct, and the judgment is affirmed. : ,
