Smith v. Newcastle

48 N.H. 70 | N.H. | 1868

Sargent, J.

When a party, by special agreement, contracts with another to labor for him, or to perform a job, furnishing labor and materials, or either of them, and executes his contract, but not in time or manner, or both, in accordance with his contract, although he cannot recover upon the special contract, not having fulfilled on his own part; yet if what he has done from the nature of the case must have been accepted as it was done, or must remain the property of the other party, or if such other party declines to return it, when in his power to do so, and what has been done is of value to such other party beyond what the first party has received, and also beyond any damage which his failure to perform his contract may have caused the other party, he may recover the amount of such benefit in indebitatus assumpsit, upon the presumption that a man who enjoys actual benefit from the labor or property of another done or performed for him, promises to pay what the same is actually worth. Britton v. Turner, 6 N. H. 481, and cases; Davis v. Barrington, 30 N. H. 517, and cases; Horn v. Batchelder, 41 N. H. 86, and cases.

But it is claimed by defendant that chía case comes within the exception stated in Britton v. Turner, where the parties have agreed that nothing should be paid the plaintiff in case of failure to perform his contract. We do not, however, so interpret this contract. Plaintiff was to have the rent or the use and occupatiomof the premises for five years, and was, in payment, to make certain repairs upon and additions to the buildings upon the premises, all to be done within the first two years, and if not done in that time, the defendant had the right to enter and expel the plaintiff.

But that by no means amounts to a contract, that if plaintiff should do most of the work, and make nearly all the additions within the time specified, but failed to complete them all, he should receive nothing for all he had done, or even that he should receive nothing but the rent or use of the premises up to that time. Such an agreement so made in terms might have constituted the exceptional case stated in Britton v. Turner. But here is no such agreement. Suppose the plaintiff had done nothing in this case, still, by the terms of the contract, he could have held the premises through the years 1864 and 1865, but in that case the defendant could not only have entered, but could have made plaintiff pay a reasonable rent for the use of the premises for that time; not, to be sure, under the contract, but because the plaintiff, having failed to perform it and broken it on his part, would be liable to pay on a quantum meruit what the use of the same was worth.

We think the contract clearly is not as the defendant claims, "that plaintiff is to be paid for his repairs by five years’ use and occupation, if all repairs are made within the time stipulated, and if not thus made, then he is to be paid for all he does by the two years’ use and occupation.” If such had been the contract, the plaintiff, by simply doing nothing, would have secured the two years’ rent without pay, and at the expiration of that time might have been expelled. The defendant would not have been wise to have made such a contract as this. Page v. Marsh, 36 N. H. 305.

Again, the defendant claims, that, as the powers of towns are limited, they can only be held to the special contracts which they make, or which are made by their express authority by vote, and that the town cannot be held on an implied contract different from the one they voted to make. But this position has been repeatedly overruled. In Wadleigh v. Sutton, 6 N. H. 15, plaintiff agreed to make a highway for the town in a particular manner, but did not make it according to the contract; held that he might recover on a quantum meruit, whatever his labor was worth to the town. The same principle applies here.

The defendant moved that plaintiff be nonsuit on the ground that the action was brought prematurely, and took exception to the ruling denying that motion. The writ was dated February 12, 1866, and by the terms of the contract, the town was to have had till March 15,1869, to have paid for the repairs in the use and occupation of the premises. Plaintiff claims that in such cases his action is in no respect founded, upon the special agreement, but upon the implied contract, and that the terms of the special agreement are admissible only to show the amount of damage sustained by the defendant by its non-fulfilment to be récouped ■against the plaintiff’s claim for the value of his services and property.

But this, position of defendant has been repeatedly overruled. In Hartwell v. Jewett, 9 N. H. 249, it is held, that, if the defendant can set up such an original contract-to limit the plaintiffs claim, not founded on such contract, but on services growing out of it, he may equally well set up such contract to defer auy rightful claini for payment for such services until such time as he reasonably deserves to have such payment, and that such special contract may be interposed as a defence so far as to protect the defendant from being harrassed or pursued for payment of any claim for a portion of the services growing out of a contract, before the expiration of the time when he would have been bound to make payment had the whole services been faithfully performed. It is also said in the opinion that it is desirable not to give the temptation of a payment of ready money instead of a delayed payment, to those who already have perhaps too much encouragement, at least all they deserve, to faithlessness in the fulfilment of their contracts.

It is held that the defendant in such case may set up the original contract to show that, though perhaps the plaintiff may deserve to havé something, still he cannot rightfully have anything of the defendant until such time as the original contract, if fulfilled, would have been payable, and that plaintiff shall not recover anything in such case, sooner than he could have claimed payment for the same services, if such contract had been fully completed.

The same doctrine is held in Bailey v. Woods, 17 N. H. 369—70, that when a credit is to be given by the terms of the contract, that stipulation extends as well to a case where all the work has not been performed, as to a case where the contract is completed. To the same point are Davis v. Barrington, 30 N. H. 530, and Thompson v. Phelan, 22 N. H. 339. Upon these authorities we think this exception of - the defendant must be sustained.

The court instructed the jury that plaintiff was entitled to recover if the benefit derived by the town from the repairs was greater than the damage suffered by the town from the breach or breaches of the contract by the plaintiff, to which defendant excepted.

These instructions are nearly in the precise words of the instructions given in several of the cases we have cited. But upon examining these cases it will be found that, where such instructions were given, no question arose as to partial payments made for such services while they were being rendered. But in Elliott Heath, 14 N. H. 131, it is held that partial payments made from time to time, as the services were being rendered, are also to be deducted as well as the damages, and if the value of the plaintiffs labor does not exceed both, he cannot recover.

In this case the plaintiff had received nearly two years’ use and occupation of the premises towards paying for his repairs and additions, and the instructions omit this entirely. The instructions should have been that plaintiff was entitled to recover, if the real value of his repairs and additions to the town exceeded the fair value of the use and occupation of the premises by the plaintiff down to the time when he was expelled1, and also the damage suffered by the town by the • breach or breaches of the contract by the plaintiff.

Upon the last two grounds the verdict must be set aside, and upon the ground that the action was prematurely brought, there must be

A nonsuit.