94 Va. 730 | Va. | 1897
delivered the opinion of the court.
This suit grows out of a contract entered into May 23, 1893, between plaintiff in error, C. G. Smith, the proprietor of the Hotel Ponce de Leon, Roanoke, Va., and the Southern Electric Company, of Baltimore, Md., whereby the latter undertook to wire and equip the hotel premises for electric lighting. The contract was made by a correspondence between the parties. The proposal of the Southern Electric Company, which was accepted by the plaintiff in error, set out minutely the work it proposed to do, and the material to be used and the character thereof, and concluded as follows: ‘ ‘This wiring also includes all necessary safety devices, cut outs, &c., to make this a perfect and workmanlike installation. * * * We guarantee our work to be first-class in every respect throughout, and to meet the approval of the officers of the Roanoke Electric Light & Power Co., price as above $750. * * * All work to be done in accordance with the rules and regulations of the Rational Board of Fire Underwriters governing same, and subject to their inspection and approval.” On the 15th of June, 1893, the appellant ordered certain work to be done and material furnished, amounting to $56.59, to be paid for as extra work. He was present all the ti ne during the progress of this work, and accepted it as done by the Southern Electric Company, and continued to use it without objection, the company claimed, till after this suit was brought in February, 1894, in the Corporation Court of Roanoke city by the defendant in error, M. R. Packard, trustee, to whom the Southern Electric Company had assigned its assets for the payment of its debts and liabilities. The action is assumpsit for the amount due under the contract, and for the extra work done; the declaration' consisting of the com
“We, the jury, find for the plaintiff, and assess his damages at $805.55, with interest from August 5, 1893, and on the offsets claimed by the defendant, we find for the defendant and assess his damages at $204.66, with interest from August 5, 1893.”
A new trial was asked for by the defendant, on the grounds that the verdict was contrary to the law and the evidence, misdirection of the jury by the court, and that the verdict was not responsive to the issues submitted to the jury; which motion the court overruled, and the case is before us upon a writ of error to that judgment.
It is not contended here that the demurrer to the declaration was improperly overruled. The errors assigned are:
1. The refusal of the court to set aside the verdict as contrary to the law and the evidence.
2. Misdirection of the jury by the instructions given.
3. The refusal of the court to set aside the verdict as not responsive to the issues submitted.
The instruction asked for by the defendant and refused is as follows: “The court instructs the jury that, under the contract of May 23, 1893, it was the duty of the Southern Electric Company to put in all necessary safety devices, cut outs, and do all other things necessary to make the work contracted for a perfect workmanlike installation, and fit for the purposes designed, that it was also the duty of said company to furnish and use in said work throughout, first-class materials,
This instruction is predicated upon the idea that where a suit as to the main item of the account sued on is based solely upon a special contract in writing, in order to justify a recovery there must be both an averment and proof of performance according to its terms, and there can be no recovery upon a quantum meruit or quantum valebat. In this view we cannot concur, and the instruction we therefore think was properly overruled.
“If a man declare upon a special agreement, and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from what is laid, he cannot recover on either count; not on the first, because of the variance; nor on the second, because there was a special agreement. But if he prove a special agreement and the work done, but not pursuant to such agreement, he shall recover upon quantum meruit; for otherwise, he would not be able to recover at all.” “And the measure of damage in such a ease, is the stipulated price, less the sum which it would take to complete the work according to the agreement.” 2 Ohitty on Con. (11 Amer. ed.), 826-7.
Parsons, in his work on Contracts, vol. 2, p. 622, in discussing “apportionment of contracts,” says: “We have seen that when parties make a contract which is not apportionable no part of the consideration can be recovered in an action on
In an action on a special contract for certain work, where the work has been completed, and accepted, prudence usually requires that the practitioner should not content himself with only a special count, founded on the contract as made, but that he should also insert a general count for the price of the work done. Then, if the plaintiff fail to prove the contract as he alleged it, or to show that the work was done as the contract required, he may notwithstanding recover upon the general count the value of the work done and accepted. 4 Minor’s Inst. (2 ed.), 622, and authorities cited.
■ The instructions given by the lower court in this case pro
We do not understand from the contract that the work done by the plaintiff was to be inspected and approved by the Eoanoke Light & Power Co., and the National Board of Fire Underwriters as a condition precedent to the payment of the contract price, and if it admitted of this construction, it was a condition that might have been waived by the defendant. If the work was not “first-class and thorough in every respect throughout,” or “the work had been done negligently and carelessly,” at least objection should have been made at the time. In accepting the work done, the defendant admits that it is some benefit to him, and that the plaintiff is entitled to some remuneration. 4 Rob. Pr. 534, and authorities cited.
The issues raised by the pleas of the defendant were to be determined by the jury upon the evidence, which is conflicting and were fairly submitted to the jury by the instructions. Applying the rule that the plaintiff in error is considered as
We are further of opinion that the verdict of the jury responded substantially to all the issues submitted. ' It was free from confusion and there was no difficulty in entering judg ment upon it'. In fact it was, under the pleadings, unobjectionable. 2 Bar. Pr., 692-3.
The judgment of the court below is affirmed.
Affirmed.