Myrick v. Slason

| Vt. | Jan 15, 1847

The opinion of the court was delivered by

Redfield, J.

There can be little doubt, perhaps, at this day, that, when a party performs labor under a special contract, but not in such a manner, or at such a time, as to entitle him to recover under the contract, he may nevertheless recover, in general assumpsit so much, only, as the labor is worth to the defendant. And I should not now be inclined to question, that this may be done, even when the. contract is, as in the present case, under seal. I should be inclined to admit, too, that the recovery, in such case, might be had in the action on book account.

But when the party acquiesces, at the time, in the manner of performing the work, he is precluded from afterwards objecting on that account. And here, the defendants having received the marble and used it, it will be presumed they expected to account for it under the contract. The auditors, too, expressly find, that “ the claim of the plaintiff is for labor performed and expenses incurred under the written contract;” — “ The contract was not performed according to its terms, and no marble answering the terms was delivered, except a small block of twenty feet.” It will be impossible, under this state of facts, to say that the parties did not understand, that they were acting under the contract. The contract itself, too, seems to contemplate, that the defendants may, if they choose, receive all the marble which the plaintiff shall raise; and if they do, they are to ■pay for it under the contract. There is no proof in the case, and no ground for believing, that the defendants have received any marble, which they did not expect to account for under the contract, and which the plaintiff did not expect they would so account for. And the plaintiff having a remedy by action of covenant upon the contract, we do not think he can waive that and bring assumpsit, or book account. If the contract had not been under seal, and had been so far performed as to give a claim for payment for any of the marble in entirety, the action of general assumpsit would lie. While but apart of the price is due, the action, even in case of a contract ;aot under seal, must be upon the contract, probably ; but when the party has a remedy by contract under seal, he is precluded from suing in assumpsit, or any other inferior action.

And from the terms of this contract, we are not inclined to question the plaintiff’s right to sue for the instalments of the price of the marble delivered, as it is delivered and becomes due; but that suit must be upon the contract.

The argument for a kind of implied parol contract, running parallel with this written contract under seal, in consequence of the defendants having encouraged the plaintiff to continue his exertions after the undertaking began to look discouraging, is certainly not justified by the finding of the auditors. Such expressions from the defendants, so far from dispensing with the contract, would naturally be understood merely as an encouragement to prosecute it, and were doubtless so received. To understand them in any other sense would be unreasonable.

But if we could find from this case, that the parties wholly abandoned -ány expectation that the marble finished would be accounted for at the rate fixed in the contract, and treated it as a distinct matter, still, as it resulted from an attempt on the part of the plaintiff to perform the contract, the defendants, by accepting it, do not preclude themselves from showing, in defence, that they have in fact received less than enough to compensate them for what damages they have sustained by reason of the failure of the plaintiff to perform his contract; and in that view the plaintiff would not be entitled to recover any thing, unless the attempt to fulfil this contract was all, which the parties contemplated the plaintiff would do. This brings us to the question of the proper construction of the contract.

It was doubtless a very rash contract at the time it was entered into, and subsequent events have shown it to have been very disastrous ; but this is no sufficient reason, why the plaintiff should not be bound by it. It would always be the desire of the court to relieve parties from unforeseen and unexpected disasters; but that cannot always be done. And in such a rash and experimenting period as the present, the most we can expect to do is to guard against positive fraud and overreaching. To attempt more than this would be idle.

We have no doubt, that both parties contemplated a more successful result from the present experiment. It is certain the plaintiff did, or he would not have bound himself positively to furnish enough marble out of that quarry to supply the defendants’ mill after the first of June, 1841. Before that he is to do the best he can to supply the mill; but from that time he “ engages to keep the mill supplied.” Nothing could be more positive. There is no pretence of fraud on the part of the defendants. Both were mistaken as to the expense necessary to perform the contract on the part of the plaintiff; but that affords no possible ground of defence at law. It is possible a court of equity, in an extreme case, might relieve the party on such grounds ; but in a court of law we cannot defend against such a contract, without showing an absolute, physical impossibility. The difficulty of performance, however great, is no excuse in a court of law. The plaintiff must abide the consequences of his contract. And for the failure on his part the defendants are entitled to such damages as they have sustained; — which the auditors report exceeds the amount of benefit to the defendants.

The claim of the plaintiff, to recover his account as charged, can only be sustained upon the ground that this contract was wholly abandoned and some other substituted, — which is not shown.

So that, upon the facts found, it seems there is no ground of ultimate recovery, upon an adjustment of all the equities, — and especially is there no ground of recovery, in this form of action, upon a sealed instrument, which is specific in its provisions, and where all that has been done by the plaintiff has been done professedly under the contract, and he has not so far performed the contract, as to benefit the defendants to an amount equal to the damage they have sustained by reason of his failure to perform the contract.

Judgment reversed, and judgment for defendants.