7 Or. 110 | Or. | 1879
By the Court,
The respondent in this case alleges in his complaint that he performed labor for appellant in ditching, and alleges his labor to be of the value of seventy-three dollars and eighty cents, and claims a balance to be due him of sixty-two dollars and interest, for which he demands judgment.
The appellant answered, and in his answer alleges that Avhatever labor the plaintiff performed for him was performed under and in pursuance of a written contract between the parties, Avhich contract is set out in the answer. The appellant alleges that the respondent has not completed
The respondent, in his reply, denies the damages, and alleges as a reason for not completing the ditches that the appellant changed the stakes locating the same, which he says were fixed at the time the contract was signed, and located the said ditches on ground where it would be more expensive to dig them; that he offered to dig the ditches on the ground where the same were located at the time of the signing of the contract, and where he agreed to construct them, but appellant forbade him. On the issues raised by these pleadings the parties tried the case, and the jury found a general verdict for the plaintiff for thirty-four dollars and thirty-three cents.
From the bill of exceptions it appears that the respondent offered evidence by himself as a witness tending to show that at the time the contract was signed the ditches were marked out with stakes; that he commenced work and dug a part of the ditches, and after working a while he found that the stakes on one of the ditches had been moved to ground where it would be harder to dig; that the appellant acknowledged that he had moved the stakes, but claimed a right tó do so under the contract, and told the respondent to dig where he had moved them or not at all, and that respondent, in consequence, abandoned the work.
The appellant offered evidence to show that when they were negotiating about the making of the contract, appellant and respondent went over the ground and drove some stakes indicating the course of the ditches, butitwas understood that the appellant was to locate them and had the right to do so. Appellant also offered evidence tending to
The respondent offered several witnesses to impeach the general character of the appellant (who was a witness in his own behalf) for truth, and on examination said witnesses stated that the defendant had had trouble with his neighbors and frequent disagreements about dealings and contracts. It appears from the bill of exceptions that there was a conflict of testimony on the issues presented to the jury about the time of locating the ditches. The respondent claimed in his case that it was the understanding that they were located when the contract was signed, which appellant denied. The language of the contract on that subject is as follows: “All ditching above specified to be performed in lines plainly staked and defined by the parties of the second part,” meaning the appellant. This language is equivocal, and may refer to lines that are already staked and defined. Parol evidence was properly admitted to show whether or not the parties referred to lines already fixed at the date of the contract, so that the circuit court properly instructed the jury that “if the parties did not substantially understand the provisions of the contract in regard to the staking of the ditch; then, so far there has been no contract, and the plaintiff is entitled to the nominal value of his labor;” that is to say, if the parties did not understand each other as to the lines of the ditches, then their minds never met and assented to the same proposition, and did not contract on that subject, and whether they did understand alike was a question for the jury. The second instruction objected to is as follows: “If the plaintiff abandoned his contract without cause he is entitled to recover the reasonable-value of his labor, subject to the offset by the damages sustained by defendant by reason of plaintiff’s non-performance of his contract.”
The determination of the .propriety of this instruction
Since deciding that case, we have more fully considered this very important subject, and think the rule here laid down to be just and reasonable, and it is supported by most of the modern authorities. To adopt the rule that in all cases a party shall be held to a literal compliance with his special contract before he can recover anything for labor, is too harsh and would often be unjust; and, on the other hand, to hold to the rule as stated in the case of Britton v. Turner (6 N. H. 481), that a person may voluntarily abandon his special contract and lose nothing thereby, would have a tendency to encourage bad faith and lessen the sacredness of solemn obligations, which it is the duty of the courts to uphold and enforce so far as the same can be done without doing manifest injustice. It would be unjust to require a total performance in cases where the party in default has bestowed his labor for the benefit of his employer and fails fully to comply with the terms of his contract from some accident or misfortune which does not involve willful neglect or abandonment on his part. We think, therefore, that this instruction of the circuit court was incorrect and might have influenced the verdict of the jury to the damage of the appellant.
It is also claimed as error that the court said to the jury that they could consider the evidence in the case tending to show that the defendant had had misunderstandings with many of his neighbors in his dealings with them, as affecting his credibility as a witness. This evidence was brought out by the examination of witnesses called by the respondent to impeach the character of the appellant for truth; and although the respondent, who offered these witnesses, could
We think there was error in the second instruction, and the judgment of the circuit court will be reversed and a new trial ordered.