| Va. | Jun 15, 1922
So far as deemed necessary, the questions presented for our decision by the assignments of error will be disposed of in their order as stated below.
[1] 1. Did the court err in giving instruction No. 2, in that the standard it set up, by which the jury was to ascertain from the evidence whether the written contract was wholly abrogated, was erroneous in this, that the jury were thereby instructed that they should find that the contract was abrogated if they believed that the additions, omissions or alterations made by the direction of the owners, or their duly authorized agents, so departed from the contract as to make it impossible to calculate the effect upon the contract price?
This question must be answered in the affirmative, for three reasons:
First: Because there was no evidence whatever before the jury tending to show that the changes in question so departed from the contract as to make it *386 impossible, if the facts had been fully shown in evidence, to calculate the effect upon the contract price. The very testimony for the contractors which was introduced on this subject showed that the contractors knew, at times the changes were directed, just what the changes from the plans covered by the contract were, in the utmost detail; that such plans were not wholly changed; and that, if the contractors had kept their books accordingly, there was no impossibility in their having had their books show precisely what expense to them, over and above the contract figures, if any, was occasioned by the changes. Indeed, the evidence for the contractors, consisting of the statement, filed by them in evidence, of all of the changes, both of additions and omissions from the contract plans, as claimed by them, and the testimony for them of the extra expense of some of these changes, demonstrates that there was no impossibility which prevented their introducing testimony before the jury showing the effect upon the contract price of all of such changes, notwithstanding the fact that their books had not been so kept as to show this.' The record indicates that the contractors did not introduce such evidence to the extent of covering all the items in the statement filed by them as aforesaid, merely because they preferred to rely upon the position that the contract was wholly abrogated by the aforesaid changes.
[2, 3] Second: The standard in question, set up by the instruction, was erroneous, in that it was too vague and indefinite to serve as a proper guide to the jury upon the question in issue. The impossibility mentioned was not limited by the terms employed, and hence consisted of no impossibility whatsoever. Under such an instruction an impossibility on the part of the jury to calculate from the evidence before them the *387 effect upon the contract price occasioned by the changes aforesaid, would have warranted them in finding the written contract abrogated. Such could not be the law, for it would offer a premium to a plaintiff in such situation to omit to prove his case.
[4, 5] Further: It is well settled what the correct standard is, in such case, by which to determine whether the special contract has been abrogated by subsequent changes, mutually agreed upon, in the construction of the building, differently from what was provided for in the contract, and that is this: To abrogate the contract the building must be so materially changed by such deviation from the contract that it cannot be reasonably recognized as the same building, or work, as that provided for in the original contract. That is to say, to abrogate the special contract, the plans covered by it must have been so entirely abandoned by the additions or omissions as to make it impossible to trace the work, provided for in the contract, and to say to what part of the work the contract applied and to what part it did not. 6 R.C.L., sec. 298, p. 914; 9 C.J. 722; Bozarth v. Dudley,
As said in 6 R.C.L., sec. 298, p. 914: "When a building is in process of construction, and additions or alterations are made, the original contract, unless it be so entirely abandoned that it is impossible to trace it and say to what part of the work it shall be applied, is held still to exist, and to be binding on the parties so far as the work can be followed. The additions or alterations, if the expense of the work is thereby increased, may be the subject of a new contract, either express or implied, but they do not affect the original contract, which still remains in force."
As said in 9 C.J. 722: "Where * * the original *388 contract is deviated from in material respects, so that the work cannot reasonably be recognized as that originally contracted for, the original contract should be treated as abandoned."
As said in Bozarth v. Dudley, supra: "Any contract may be abrogated or abandoned by the express agreement of the parties who made it. An abandonment may be implied also from the acts of the parties, as, for example, if upon the site upon which a building was to be erected under a written contract, the owner should direct the builder to erect a building entirely variant in character, shape, material and style."
[6] Instructions A and B, given by the court, correctly stated the law on the subject of the abrogation of the original contract. Instruction No. 2, if intended to set up the same standard as instructions A and B, by which the jury were to determine whether the contract was abrogated, was not properly phrased so to do; especially is this so when the instruction is read in the light of the only evidence introduced by the contractors on the subject of the "impossibility" mentioned therein; and being complete in itself, in that it directed a verdict, the defect was not cured by instructions A and B.
[7] Third: Instruction No. 2 was erroneous for the reason that there was no evidence to support it on the subject of the entire abrogation of the original contract, of the clear and convincing character which the law in such case requires.
Where the deviations from the original contract, which are relied on as having wholly abrogated the contract, are made by mutual consent, the law is that for the deviations to have that effect — the mutual intention that they shall have that effect — "must be apparent or clearly shown by implication." 30 Am. *389 Eng. Encyc. of Law (2d ed.), p. 1211. That is to. say, there must be clear, unequivocal and convincing evidence, direct or implied, of such intent, on the part of the owner, as well as of the contractor, before such effect ensues.
[8] There is, in the case in judgment, an entire absence of any evidence tending to show that what the owners did; even Warren, whose conduct in directing changes was more extreme than that of any other owner, was not entirely consistent with the intention not to abrogate the original contract further than was occasioned by the changes which were made by the mutual consent of Warren and the contractors; and merely to ask for certain omissions, which would have the effect of reducing the total expense, and for certain additions, which would be extras, and have the effect of increasing the expense, the obligation being upon Warren of personally paying the contractors out of his own pocket whatever might be the excess, if any, of the total expense to the contractors over and above the price of $20,000.00, which was occasioned by such changes, after due credit was allowed for the omissions. That this is a correct view of the evidence becomes more apparent when it is considered that the uncontroverted evidence discloses that all of the omissions and additions aforesaid were assented to by the contractors, without the position being taken by them or either of them, at any time before the completion of the work, that the original contract would be entirely abrogated because of those changes. Indeed it appears from the statement of counsel for the contractors during the trial of the case, that not even upon the trial was the position taken by the contractors that the original contract had been entirely abrogated by the changes. The statement of counsel on the trial referred to is as follows: *390
"I want to say this, your Honor, in regard to our position in this matter: My friend is absolutely correct that we start off with a written contract. The terms of that contract are specific — namely, that we will do certain work for a certain agreed price; or, in other words, we will do that work at the actual" (something here omitted), "to the defendants, plus ten per cent., with the understanding that the entire cost to the defendants for that particular work shall not exceed $21,000. We have just started on the line of evidence, which I hope to develop later in the case, to the effect that when we started on that specific work, from its very inception, there were made changes in that contract, so that at the end, when the work is finally completed and accepted by these defendants, is no more the contract than a very, verysmall part of it, by reason of the changes made, and that the written contract has been swallowed up on the parol contract growing out of these various changes that have been made during the prosecution of the work. We, therefore, find ourselves in the position that these things are so interwoven that you can't tell where the old contract starts and the new contract begins; and in a case of that kind the authorities are amply on the point that you prove your contract as modified, and that isthe contract in the case * *." (Italics supplied.)
This statement, in its conclusion, is, in substance, a correct statement of the only contract of which there is any evidence in the record before us — namely, the original contract in writing as modified by the changes in construction made by mutual consent, as aforesaid. This being so, it is manifest that the instruction under consideration was misleading on the subject of the abrogation of the original contract; the result being to authorize the jury to find that the contract *391 had been wholly abrogated, when there was no evidence before them on which such a finding could be properly based.
The quotations from the authorities and what we have said above, upon the subject under consideration, are applicable to cases in which the deviation from the original contract requirements are made by parol and by mutual consent of all the parties to such contract, so that that contract is not regarded as remaining open and unperformed. Deviations not mutually consented to, or made under special contract entered into, subsequently to the original special contract, involve other principles.
[9, 10] 3. This being a case of mutual consent to changes in the original contract requirements, whether the specifications formed a part of the original contract in the case in judgment is not, as we think, a material question, as bearing upon the further question of whether such contract was abrogated.
As said in 6 R.C.L., section 298, pp. 914-15:
"It is true that a simple contract completely reduced to writing cannot be contradicted, changed or modified by parol evidence of what was said and done by the parties to it at the time it was made, because the parties agreed to put the contract into writing and to make the writing part and evidence thereof. The very purpose of the writing is to render the agreement more certain and to exclude parol evidence of it. Nevertheless, by the rules of the common law, it is competent for the parties to a simple contract in writing, before any breach of its provisions, either altogether to waive, dissolve, or abandon it, or add to, change, or modify it, or vary or qualify its terms, and thus make a new one. In such case the contract must be proved partly by the written and partly by *392 the subsequent oral contract which has thus been incorporated into and made a part of the original one."
It follows that no express provision in a building contract that changes may be made without abrogating the special contract is necessary in order to authorize changes by mutual agreement of all parties being made without that effect. Such a provision is necessary to avoid such effect only where the changes are made by one of the parties without the consent of the other. See to same effect 9 C.J. 717 et seq.
The specifications, indeed, contained the specific provision that the owners might, "without invalidating the contract, make changes by altering, adding to or deducting from the work." As held inBozarth v. Dudley, supra (
[11] 4. It should be noted, however, that as there were some controverted questions in the case, with respect to what items of the work done were covered by the original contract, which the specifications covered, but which the plans, from their very nature could not and did not cover, the jury should have been instructed with respect to the practical bearing the fact that the specifications were or were not a part of the contract had on their verdict, so that they might have had that subject in mind in arriving at their verdict, and have ascertained what the fact was in respect to that matter.
It results from what has been said that a new trial will have to be awarded.
[12] 5. On a new trial the liability of Warren will have to be ascertained, first, by deducting from the original contract price of $21,000.00, plus the expense of the ripsawed flooring, the reasonable saving of expense to the contractors due to the omissions, aforesaid, at the times they were made, which will fix what must be regarded as the contract price so far as Warren is concerned; next, by finding what was the reasonable expense to the contractors incurred for the additions, aforesaid, at the times they were made, and for this Warren should be held liable to the contractors, in addition to the contract price fixed as aforesaid; subject, of course, to proper credit for the payments which have been made.
The liability, or nonliability, of the other owners, to be ascertained upon a new trial, involves more complicated problems. None of them executed the written contract; and there is no evidence tending to show that they authorized Warren to execute it, so *394 as to obligate them for a greater maximum price than $20,000.00. Whether the respective owners, other than Warren, afterwards obligated themselves for any greater price, depends on whether they ratified what Warren did under such circumstances, or their own conduct was such, in directing the changes in plans, or in accepting the completed work, as that, under the circumstances, it is just and equitable that they should be liable to the contractors for a greater maximum price than $20,000.00.
[13, 14] As bearing on these questions, it must be borne in mind that none of the owners could bind the others to any agreement with the contractors, express or implied, merely because of their relationship as co-owners.
As said in 17 Am. Eng. Enc. of Law (2nd ed.), p. 672:
"Cotenants may, of course, render themselves jointly liable to third persons by contracting jointly in respect to the common property. But one tenant in common cannot bind his cotenant personally nor by any unauthorized agreement or act in respect to the common property. There is no relationship existing between cotenants, as between partners, which will render the acts of one cotenant respecting the common property binding on the others. No action of one or more of several tenants in common can impair the rights of the other cotenants."
As said in 38 Cyc. 101:
"Under ordinary circumstances neither tenant in common can bind the estate or person of the other by any act in relation to the common property, not previously authorized, or subsequently ratified, for cotenants do not sustain the relation of principal and agent to each other nor are they partners and the *395 rule which prevents them from binding each other applies with greater force after expiration of the cotenancy. A contract by one tenant in common in relation to the whole estate being voidable at the election of his cotenants not joining in said contract. But the contracting cotenant may himself be bound. Even where some previous authority or agency is conferred upon a tenant in common, his acts must be strictly within the authority, third persons dealing with a tenant in common being bound attheir peril to ascertain his authority to bind his co-owners." (Italics supplied).
[15, 16] And the following must also be borne in mind:
Both instructions No. 1 and No. 2, given by the court in the instant case, were erroneous in their reference to the effect of the mere acceptance, use and enjoyment of the building after completion, without some further explanation of what was meant thereby. Those instructions give too much effect to the mere naked occupation of the building after completion. That is a circumstance to be considered, but it is not, in itself, either conclusive or presumptive evidence of acceptance, in the true meaning of that word in such cases. The use and enjoyment of one of a building erected on his land, rests upon a different footing from the acceptance of a chattel, in so far as concerns the implied promise which the law will supply in the respective cases. Building contracts are different in this particular from contracts for chattels. The use of the terms "accepted" and "enjoyed the use and benefit" in such instructions as these under consideration, without further explanation of their meaning, is plainly misleading in such a case as that in judgment. *396
As said of building contracts, in Bozarth v. Dudley, supra
(
"The rule most agreeable to the principles governing contracts is, it seems to me, this: When a contract for erecting a building has not been so performed that a recovery can be had thereon, a recovery in assumpsit, upon the common counts for work and materials furnished in the erection, will only be permitted when the owner has accepted the building erected. The view that assumes acceptance from the mere fact that the edifice adds value to the land on which it stands, in my judgment unduly restrains the force of the contract of the parties, and deprives the owner of the right to reject an edifice not in substantial conformity with its terms * * * *397
"Such acceptance by the owner may be express or implied from his conduct. It seems well settled that mere occupancy of the building by the owner, while appropriate, is neither presumptive nor conclusive evidence of acceptance. The reason is obvious. The building belongs to the owner of the land on which it stands. As said by Lord Campbell inMunro v. Butt, * *, the owner cannot be appropriately said to take possession of the building, for he has not been out of possession of that which is thus affixed to his own land."
This does not mean, however, that the taking possession of a structure, without objection to its construction, may not, under some circumstances, amount to such an acceptance of the work and materials that the law will imply a promise to pay therefor on a quantummeruit or quantum valebat. Atlantic D. R. Co. v. Delaware Const.Co.,
Touching the enquiry whether there is any liability on the part of the owners, respectively, other than Warren, and, if so, upon which, if not upon all of them, the instructions, upon a new trial should explain to the jury the peculiar features of the law above mentioned, which, otherwise, they are likely to overlook to the prejudice of the owners in such a case, and be so framed that the jury may be left at liberty, if the evidence shall warrant it, to return differing verdicts for or against the several owners.
There are two other questions which arose in the former trial, touching the admissibility of certain questions on cross-examination, which are the subjects *398 of assignments of error on the present appeal, which may arise on a new trial, and which, therefore, we will pass upon. They are as follows:
[17] 6. Brinson, a witness for the owners, testified, as an expert, to the expense of the omissions and additions aforesaid, and, on the subject of his qualification to testify as such an expert, testified that he had been engaged in the building business for fifty years. On cross-examination he was asked, over the objection of the owners, and was allowed to answer, the following question, namely: "Were you successful in business?"
The question was too broad in its scope to be properly admissible. As asked it involved a diversion of the minds of the jury into too wide a field of immaterial contingencies and collateral issues. The question should have been confined to the enquiry into whether the witness had previously made any serious mistake in such estimates as those about which he had testified.
[18] 7. While another witness for the owners was on the witness stand, named Phillips, he was asked, on cross-examination, over the objection of the owners, and was allowed to answer questions as to what was the business reputation and standing of a number of the subcontractors, who furnished labor and materials for the work in controversy.
The business reputation and standing of these contractors was not in issue in the case, as an original proposition; and no effort had been made by the owners, by cross-examination, or otherwise, to impeach such reputation, so as to put it in issue. Therefore the questions under consideration and the answers thereto were inadmissible in evidence.Reynolds v. Richmond, etc., Co.,
As aforesaid, a new trial will be awarded, but upon such trial the fact that the original contract has not been entirely abrogated shall be taken as concluded, and the trial shall be had upon all other questions which have arisen or may arise in the case.
Reversed and a new trial granted.
*386