27 Mont. 44 | Mont. | 1902
delivered the opinion of the court.
• This action was brought on a contract to recover judgment for $9,312.96, besides interest. The plaintiffs recovered a judgment for $9,743.67, with costs. From it and an order refusing a new trial, the defendant prosecutes these appeals.
“Bozeman, Mont., August 15th, 1896. Agreement entered into this date by and between Charles Suiter, of Helena, Montana, general contractor for furnishing the material and building the buildings for the Montana State Agricultural College, Bozeman, Montana, the party of the first part, and the Peck-Williamson Heating and Ventilating Company, Cincinnati, Ohio, party of the second part. - The party of the first part agrees to furnish all the extra material and do all the extra labor that is now not contracted for in general contract for buildings that is necessary toi install the heating, ventilating, and sanitary apparatus of the party of the second part in the Montana State Agricultural College Buildings, Bozeman, Montana. All material and labor party of the first part furnishes party of the second' part to be paid for by party of the second part according to the following schedule of prices:” the remainder of the instrument being devoted to the rules for measi-uring the work, the description of the material to be used, and the schedule of prices. The contract does not expressly provide when payment shall be made.
Prior to June 22, 1897, the plaintiffs had performed labor and furnished material under the terms of the contract, which, according to the schedule of prices, amounted to $9,312.96, and which entered into and became parts of the buildings, and cannot be removed. Prom that day they ceased work, and have never done anything further under .the contract. They abandoned it because the defendant refused to> pay for the labor and material already per
1. Can the action be maintained upon the special contract ? The defendant contends that it was prematurely brought. Upon its face the contract is entire, and the consideration single. The intention of the parties, as disclosed and evidenced by the terms of their engagement reduced to writing, ivas that the defendant should not become indebted to Suiter unless and until he furnished all the material and did all the labor specified in the contract. There was in the contract no time expressly appointed for payment, but the law made the price due and payable upon complete performance by Suiter or his firm. Substantial performance by Suiter of his promises ivas a condition precedent to the company’s liability under the express contract to pay the whole or any part of the consideration. (Franklin v. Schultz, 23 Mont. 165, 57 Pac. 1037.) The fixing of prices upon the different items did not operate as a severance (Isaacs v. McAndrew, 1 Mont. 437) ; it ivas a mere means of ascertaining the total compensation to be paid in the event Suiter executed the undertaking.
The plaintiffs alleged that at the time the written contract
It is perfectly clear that the evidence was erroneously received. The rule which prohibits the reception of evidence of oral promises or agreements made prior to or contemporaneously Avith the execution of a Avritten contract purporting to' embrace all its terms, Avhich contradict, change, add to, or subtract from the express terms, is declared and interpreted by the decisions of this court, as Avell as prescribed by statute: Knox v. Gerhauser, 3 Montana Reports, 278; Fisher v. Briscoe, 10 Montana Reports, 124, (25 Pac. 30); Anderson v. Perkins, 10 Montana Reports, 154, (25 Pac. 92); Gaffner Mercantile. Co. v. Hopkins, 21 Montana Reports, 13, (52 Pac. 561); Sanford v. Gates, Townsend & Co., 21 Montana Reports, 277,
-The action cannot be maintained upon the special contract in writing.
2. Under the circumstances, can the action be maintained upon the quantum meruit and valebai count?
This is not an action where, in an attempt in good faith to perform a contract, there have been comparatively unimportant deviations from, or omissions to conform to; its terms. On the contrary, it is a case where the plaintiffs, after partly performing an indivisible contract, without legal cause voluntarily abandoned and refused to complete it, leaving the work unfinished in important and substantial particulars. They insist that they may disregard the express contract which they have refused to perform, and recover the value of the labor and material in an action upon a new contract which they say has arisen from the retention by the defendant of the benefits conferred by part performance of the express contract.
The question involved has been the occasion of decisions almost innumerable. The greatest contrariety of opinion exists. Britton v. Turner, 6 New Hampshire Reports, 481 (26 Am. Dec. 713), is perhaps the leading case in the United States, for
We think the rule of Britton v. Turner, supra, is opposed to the -weight- of authority, and in conflict with fundamental principles of law. The opinion in that case vigorously and plausibly presents the reasons which moved the court to its conclusions, but it impresses us as proceeding upon a false premise. Judicial tribunals should not assume power to compel tbe discharge of mere ethical duties arising from imperfect or moral obligations. Without a wrong there is no cause of action. A wrong is tbe breach of a legal duty. A legal duty is an obligation arising either from tbe contract of tbe parties or tbe operation of law. (Sections 1920, 1921,* Civil Code.) Unless A.
. In the case at bar the fact that the defendant received the benefit of labor and material of the stipulated price of $9,-312.96 does not raise an implied promise to pay for them. There was no severance of the original contract, nor apportionment of the consideration.» The labor and material necessarily
Under the.facts disclosed by the evidence on the part of the plaintiffs, they were not entitled to -recover either upon the special contract pleaded in the statement of the first cause of action or upon-the quantum ■m&t'uit and- valebat count-, constituting the second cause of action.
Counsel on each side have ably argued many interesting ques1-tions, which we-need not consider. The points decided will dispose of the appeals upon their merits. The judgment and order are reversed, and the cause is remanded, with direction to grant the motion for a new trial.
Reversed and remanded,