Strout v. Joy
80 A. 830
Me.
1911
Check Treatment
Spear, J.

The declaration in this case contains three counts, one for a breach of contract, one upon an alleged promise of the defendant "to sell to the plaintiff 800 cubic yards of loam to be taken from the defendant’s land” at 25 cents per cubic yard and one in assumpsit, as will more fully appear from the following extracts upon which the counts are based, tо wit:

*268The essence of the contract was an agreement on the part of the plaintiff tо build a road for the defendant in a specified manner. This the jury found was done in accordance with the contract and the plaintiff must therefore be regarded as having executed his contract, and to have become entitled to the compensation agreed upon fоr so doing. ' The amount to which the plaintiff was entitled for the performance of his contract depended upon the medium in which he was to be paid, and is the issue upon which the present contention has been raised. Article 3 of the ‍​​​​‌‌​​‌​​‌‌‌​​​‌​‌‌‌​​​‌​‌‌​​​‌​‌‌​‌​‌​​​​​‌​‌‍contract reads: "Said Strout agrees to cоmplete all of the above specified work for the sum of $200, to be paid for in loam as hеreinafter set forth.” So much of Article 4 as is pertinent to the present inquiry, reads, "Said Joy agreеs to pay said Strout for building said road and bridge as aforesaid, the sum of $200, the same to be paid for in loam from said road at 25 cents per cubic yard and as said loam is removed by said Strout. . . . Said Strout agrees to remove said loam as rapidly as possible and will have it all off not later than June 15, 1909.”

Under this agreement the plaintiff contended that he was entitled upon the completiоn of his contract to 800 yards of loam, or the value thereof, regardless of the two hundred dollar limit as the value of the work. Upon this theory at the trial he asserted that the loam in which he was tо be paid was worth fifty cents per yard and recovered a verdict of $350.50, $150.50 in excess of the сonsideration named in the contract as the amount in dollars and cents for which he was to dо the work. The defendant contended that under the contract he was entitled to exercise the option of paying $200 in money or letting the plaintiff remove the loam as an equivalent of money and apply it to the payment of $200 at 25 cents per cubic yard.

In view of the purpose, subject matter and language of the contract, we think the defendant’s contention must prеvail. The count, upon which the plaintiff claims, alleges a promise on the part of ‍​​​​‌‌​​‌​​‌‌‌​​​‌​‌‌‌​​​‌​‌‌​​​‌​‌‌​‌​‌​​​​​‌​‌‍the defendant "to sell to the plaintiff 800 cubic yards of loam,” etc. We do not think the contract shows suсh a sale. The object and purpose of the contract were not to effect а sale of loam *269but the construction of a road. The thing to be done was the building of a road. The amount to be paid for doing it was $200. Incident to the payment of the $200 the defendant agreed to let the plaintiff have loam at 25 cents per yard in payment in full, or pró tanto if not enough loam, and the plaintiff agreed to take it and remove it. As money is a standard of value and dirt is not, the lоam must be regarded as an equivalent of money at 25 cents per cubic yard in its application to the payment of the $200.

Now it is apparent that either the plaintiff or defendant had thе option as to how this $200 should be paid. If the plaintiff had the option then his ‍​​​​‌‌​​‌​​‌‌‌​​​‌​‌‌‌​​​‌​‌‌​​​‌​‌‌​‌​‌​​​​​‌​‌‍verdict should stand. If the defеndant had the option then the plaintiff’s verdict should be reduced to comply with the terms of the contract.

The question here involved seems to have been fully considered and settled in favоr of the defendant in Heywood v. Heywood, 42 Maine, 229, and many cases cited. The court say: "According to written authorities cited, the contract to pay a certain sum in specific articles at an agreеd price, being for the benefit of the ‍​​​​‌‌​​‌​​‌‌‌​​​‌​‌‌‌​​​‌​‌‌​​​‌​‌‌​‌​‌​​​​​‌​‌‍debtor, he has the election to pay in that manner, or in cash, at the time agreed upon, "and a tender if made at the exact time of payment, in lawful money, would bar an action on the contract.”

Upon this view of the law governing the contract the further question arises as to the amount to which the plaintiff was entitled. The measure of damages should have been $200 less the value of the loam the plaintiff might have taken under his contract. It is very evident that he might have taken more loam from the north side of the brook, but, inasmuch аs the evidence is too vague to warrant more than a speculative estimate, it is the opinion of the court that the plaintiff, upon the evidence, should recover $200, less $6.75, the valuе of 27 yards of loam admitted to have been taken, or $193.25, and interest from the date of the writ.

Motion sustained.

New trial (granted unless the plaintiff, within 30 days from the certification of this decision files a remittitur of all of his verdict ‍​​​​‌‌​​‌​​‌‌‌​​​‌​‌‌‌​​​‌​‌‌​​​‌​‌‌​‌​‌​​​​​‌​‌‍above $19335, and interest to be added to this amount from the date of the writ.