26 Mich. 452 | Mich. | 1873
Plaintiffs in error sued defendant in error in an action of assnmpsit, declaring upon the common counts only, and furnished the following bill of particulars of their demand: “June 1st, 1870. One steam engine boiler, sold
and delivered by plaintiffs to defendant________________________- $1,100 00'
“ “■ One steam boiler front, sold and delivered by plaintiffs to defendant, 100 00
“ “ “ One balance-.or fly-wheel to steam engine, sold; and delivered as aforesaid..................... 100 00”
The defendant pleaded the general issue, and gave notice of set-off, and also gave notice; in. substance, that he would show on the trial, that said articles were sold and' delivered to him under, and in part performance of, a special contract in writing, made between the parties on the 18th day of December, 1869, by which the plaintiffs agreed to make for, and sell to defendant, and tlie defendant agreed to purchase, one steam engine and its appurtenances- (including the articles mentioned: in plaintiffs’ bill of particulars), at the price of two thousand dollars; payable, seven hundred dollars at the execution of the contract .(which was paid accordingly); three hundred dollars when, the engine should' be ready for delivery; five hundred dollars in lumber (at twelve dollars per thousand), within three months after tabling the engine away; and five hundred dollars in cash, eight months from the date of said agreement; said engine and its appurtenances (including said articles), to be delivered by or before the 1st day of March, 1870, and the
We shall therefore consider the case in all • respects as' if no notice of recoupment had ever been given; remarking here for ■ the present, that the general- issue, without any- notice in an action, of assumpsit, ■ as a general rule, denies and puts- in issue every fact, and every combination of facts, necessary to constitute-the plaintiffs’ cause of action; in other words, it denies the existence of any- such state of- facts, as could constitute or establish the promise declared: upon, or which would entitle the plaintiffs to recover upon-the. cause of action alleged.
The plaintiffs opened their evidence by introducing one of their own number as a witness, who testified that plaintiffs were- engaged in the business' of manufacturing engines and boilers; that they had had dealings with defendant.; that on the first day of May, 1870, they let him have a-boiler; and a fly-wheel to a twelve-inch engine, the boiler-worth one thousand and thirty-five dollars, and the fly-wheel;
We are aware of no sound or recognized theory of the action, of pleading, or of evidence, upon which this objection can be maintained. By the common law, until a very recent period, no principle was better settled, than that when there was an express contract, none could be implied; and whenever in an action based upon an implied contract, it' appeared upon cross-examination of the plaintiff’s witnesses (which for this purpose was always admissible), and the fact was not disputed, that the work (for instance) was done, or the goods furnished, under an express contract, differing in any respect from what the law would have implied, and which was still in force, there was an end of the plaintiff’s action; unless he -could show that he had fully performed the contract, so as to create a duty on the ' part of the defendant, to pay the money compensation .agreed upon, which duty is treated as an implied promise ■
And now that the courts, in some cases of part performance of an entire and express contract, have recognized an implied and independent contract, as „ arising from the benefit which the defendant has received from the acceptance and appropriation of a part of the labor or property contracted for, as will be more fully explained in its proper place, the cross-examination as to the existence and terms of the special contract, and the whole transaction connected with the performance of the work or the -furnishing of the property, as in the present case, is equally pertinent.
The establishment of such a state of facts as would constitute an implied contract to pay for the articles in question, was incumbent upon the plaintiffs, and constituted the plaintiffs’ case. The testimony this witness had just given on his direct examination, tended to show a sale of the articles without any specified or agreed price, and hence, to' establish a duty on the part of the defendant, and therefore an implied promise or contract to pay, whatever the articles were reasonably worth, and to-pay this at any moment, upon request. The defendant had the right on cross-examination, not only to call out any fact which would contradict or qualify any particular facts stated on. the examination in chief, but any thing which would tend to rebut or modify any conclusion or inference resulting from the facts so stated, and therefore to show that the whole transaction connected with the' furnishing of these articles, did not constitute such contract as that which the direct evidence of this witness tended to prove; but he could not do this, nor could it be known whether any or what contract would result, and the cross-examination
It is hardly necessary to add, that upon these principles, all parts of the cross-examination, in this case were clearly admissible under the general issue alone, though some of the facts elicited might not be as advantageous to the defendant. as if the notice of recoupment had remained..
.. While upon the subject of cross-examination, it may be proper to state (though there is nothing in the form of present bill to call for it), that, judging from the form in which bills of exceptions are quite frequently presented, we infer that an erroneous notion still prevails with some members of the profession, as to the question on whose part, the evidence given on cross-examination, is to be considered as introduced. Thus, it is not unusual to find in bills, of exceptions, a statement of the evidence drawn- out on the cross-examination, as evidence introduced by the party making the cross-examination, “tending to prove” his case. This statement is always incorrect, when used with reference. to a legitimate cross-examination. All testimony elicited on such cross-examination, consisting, as it does, of facts which, though relating to the direct examination, may have been omitted or concealed in that examination, or facts tending to contradict, explain or modify such facts, or to rebut or modify some inference which might otherwise be drawn from them, must in. the nature of things, constitute a part of the evidence given in chief.;, and both alike and together, must, therefore, be treated as= evidence given on the part- of the party calling the witness. The evidence given by the witness is not that alone
For a proper understanding of the other questions raised, it is necessary to state the substance of the further testimony in the case. The witness on his further cross-examination states, that defendant paid the seven hundred dollar’s mentioned in the contract, on the day of its date; that plaintiffs delivered the boiler May 1, 1870, complete, except the man-hole plate, but no smoke stack or connecting’ pipes with it.
On his re-direct examination, he states these were delivered- under the special contract, that defendant has not received the balance of the work under the contract; that plaintiffs (as will be further explained) afterwards completed-the balance of the work, except the smoke stack and some connecting pipes; that the reason they did not deliver the balance of the articles was, that defendant was demanding-three hundred dollars damages for delay in completing the work; that plaintiffs had tendered defendant the balance of' the work (except the smoke stack). And he then explains the circumstances substantially as follows: That plaintiffs-were burned out the 2d of March, 1870; that the engine was all completed at that time, except the engine bed, cylinder, steam chest, governor and throttle valve, and the boiler was complete with some slight exceptions; that about a week after this the defendant came and sympathized with them about the calamity, and told them to go on and finish up the work, and he would take no advantage of them,, that he did not know that he should he in a hurry for the work until after harvest, but should want the boiler as soon as finished; that plaintiffs put up some sheds, and completed! the boiler, and delivered it to him about May 1st; that;
On his re-cross-examination he states, that the engine-had not been delivered, and is then asked what is the value of such an engine as was specified in the contract. This question being objected to, and the objection overruled, he states that the plaintiffs had since sold this engine for one thousand three hundred dollars; that some of the articles not delivered, were:
Smoke stack and breaching, worth............ $75 00
Steam gauge, $8, three water gauges, $1 each... 11 00
Safety valve, $35, grates, $33.......... 58 00
Man-hole plate, $5, pump, $3.................. 8 00
Superintending setting up engine, and erection of brick work, $30, of which they had supplied 30 00
Plaintiffs also gave evidence by another witness, that the boiler, when delivered (without the man-hole plate not delivered), was worth.............................. $950 00
The fly-wheel, as delivered, about-------------- 111 00
.And the boiler front, delivered................. 64 00
$1,125 00
It was conceded by the defendant, that he had used the 'boiler and boiler front, up to the time of the trial, and that he had sold the fly wheel for fifty dollars, since this .•suit was commenced.
Here the plaintiffs rested, and defendant, offering no • evidence, was allowed to amend, by striking out the notice •of recoupment, as already stated.
Now, before entering upon any of the questions arising •upon the specific exceptions, it is proper to notice one very important feature of the case, bearing strongly upon the merits, which the evidence forces upon our attention. I allude to the significant fact, that all the evidence bearing upon the point tends to show, and (there being none to the contrary, and all being introduced by the plaintiffs themselves, and therefore, being their own showing) the fact may, as against the plaintiffs, be assumed as conclusively established, that the special contract was a losing one to the plaintiffs; that if they had completed it, even after the extension of time to which the evidence shows the defendant assented, and the defendant had paid the contract price, just as the plaintiffs claim he ought to have done, they would have lost largely, instead of gaining, by the performance of the contract; since the engine itself (sold for one thousand three hundred dollars),, together with the portion of the contracted articles delivered (the lowest valuation by the evidence, one thousand one hundred and twenty-five dollars), amount to more, by four hundred and twenty-five
It is therefore clear that if they had completed -the contract on their part, and tendered the whole of the undelivered portion of the property to the defendant, .on the 15th of September, unconditionally, and hé had refused to take and pay for it, and they had brought-suit upon the contract, to recover for the portion delivered, and damages for the defendant’s refusal to take and pay for the balance, or for being prevented from performing the contract, they could (after allowing the seven hundred dollars paid) have recovered nominal damages only, as they .would have gained largely instead of losing, by the defendant’s breach. But the plaintiffs do not sue upon the con.tract, and not having fully completed it, they' could not have recovered if they had. And if prevented from performing by the acts of the defendant, they cotild only sue upon the special contract for damages on this ground, and not upon the common counts.
The only possible theory of the action, upon which they could recover at all, is that upon which it is evident (-from their declaration, and the evidence in chief, with which they undertook to support it, without reference to the special contract) they did proceed;’ which is this: That notwithstanding -the articles delivered were a part only of
This theory of the action does not proceed upon the idea of repudiation or recision by the plaintiffs, of the special contract, but is entirely consistent with the full admission of its continued existence and force, though it involves an admission by the plaintiffs of their inability to perform it, or, at least, an abandonment of the attempt to perform it. The plaintiffs, therefore, were not bound to repay to the defendant the seven hundred dollars received by them upon the contract, so as to place him in statu quo, before instituting their suit, as was very strenuously insisted by the counsel for defendant in error. But that sum having been paid by the defendant upon a contract, the performance of which the plaintiffs had abandoned, was so much money in the plaintiffs’ hands for the defendant’s use, of which he was entitled to the benefit, under his notice of set-off.
But the action, upon this theory, being an innovation upon the common law (which in such cases permitted no
I do not mean to say that there is any evidence in this case, tending to show bad faith on the part of the plaintiffs, or a wanton refusal to perform their contract; but the hardship to be remedied is not manifest. And as the law cannot, without encouraging the breach of contracts, permit parties to gain by breaking them, we held in Allen v. McKibbin (which was an action upon the common counts in a case of part performance of a special contract), that the plaintiff cannot be allowed to recover more than the contract price; and that he cannot recover this, if the work is not reasonably worth it, or if, by paying it, the rest of the work will cost the defendant more than if the whole had been completed under the contract.
These principles applied to the present case, would defeat the plaintiffs’ action, upon the plea of the general issue alone; since, if the plaintiffs are entitled to no more than the contract price, they have already received all the compensation the law will allow them to recover, in the seven
But in Allen v. McKibbin, the defendant was in no way in fault; and we held in Kearney v. Doyle, 22 Mich., 294, that if the plaintiff had, by the fault of the defendant who had practically repudiated the contract, been deprived of the opportunity of performing it (or, which is the same in effect, if he had prevented the plaintiff from performing, after part had been performed), the plaintiff should not, as to the part performed, be limited to the contract price, but might recover the value, though in excess of that price. And it is insisted by the counsel for the plaintiffs in error, that the present case falls within this principle, because, as he contends, the defendant prevented the plaintiffs from performing.
But, though this evidence tends strongly to show (and there being none to the contrary, may be said to establish the fact), that defendant had consented to the delay and waived damages on that ground, it fails to show that he was legally in fault as to the final performance by the plaintiffs, or that he, in any proper sense, prevented performance on their part, or justified by his actions, their non-performance; while it does show that the plaintiffs, without legal justification, stopped short of performance.
When the dispute arose between the parties, as to the damages claimed by the defendant, and the amount then due upon the contract (September 15th), and the work was about all done and ready for delivery, the plaintiffs claiming eight hundred dollars to be then due and payable, in effect refused to deliver, or to tender delivery upon any other terms than upon the payment down of eight hundred dol
On the other hand, the defendant did properly tender to them the three hundred dollars (which by the contract was payable on delivery), and a chattel mortgage for the balance, one thousand dollars, which mortgage was a compliance with the contract, if the postponement of the performance of the contract, on the part of the plaintiffs, with the assent of the defendant, had the effect to postpone also the five hundred-dollar payment, whch was made payable at eight months from its date. If, under the circumstances, this installment had been thus postponed, then the tender by the defendant of the three hundred dollars, and the chattel mortgage for the one thousand dollars, was good; and by declining it, and refusing to complete the contract, the plaintiffs put themselves in default; for the tender by the defendant was not conditional, in any such sense, at least, as would vitiate it. The fact that he claimed he had a right to damages for delay, did not call upon the plaintiffs for any admission of the validity of that claim, nor would their acceptance of the tender have amounted to such admission. Had such been its effect, the tender would not have been good.
Was then, this five hundred dollars due on the 15th
By the. original contract, it is true, which was dated December 18th, 1869, this five hundred dollars was required to be paid eight months after its date, which would make it payable on the 18th day of August, 1870. But by the same contract the engine, and all the contracted articles, were to be completed and delivered by the 1st day of March,, 1870, five months and eighteen days prior to the day fixed for this payment. It is manifest, therefore, that the parties, in making the contract, did not contemplate that this payment should be made on the completion of the contract,, but that there was to be a credit of over five months for this sum, after the completion of the contract by the plaintiffs, and the reception of the property by the defendant. And the contract further provided for a chattel mortgage to' secure the payment of it (with another like amount).
But the shop of the plaintiffs was burned, and the time of completing the contract, was consequently postponed from time to time with the assent of the defendant, and for their accommodation, until the 15th of September, 1870, and the evidence furnishes no reason to infer that defendant assented, or would have assented, to the postponement of that part of the contract which they were to perform for his benefit, without the like postponement of the stipulations which he was to perform for their benefit, especially as the former were the consideration for the latter.
In the absence- of any evidence to the contrary, the inference is strong, and conclusive, that the postponement of the plaintiffs’ performance with the assent of the parties, was understood, and intended to postpone for a corresponding period all the stipulations for payment on the part
The case does not show at what time the chattel mortgage tendered, was made payable ; but being objected to only upon another ground, and not because not payable at the proper time, was an admission that it was not objectionable as to the time, if any time was to be given, but simply because it was claimed that this sum should be paid down. We must, therefore, infer that it was made payable within five months and eighteen days from September 15th. We must, therefore, treat the tender, both of the three hundred dollars and the mortgage, as sufficient to put the plaintiffs in default.
There was, therefore, no ground upon which the plaintiffs could claim for the portion of the articles delivered, more than the contract price; and this, and more than this, as we have already seen, they had received, and actually made a profit, or, which is the same thing, avoided a loss, by failing to perform their contract.
The circuit judge was, therefore, correct in instructing the jury that, upon the evidence, the plaintiffs were not entitled to recover. The reason assigned by him may not have been in form, the true one in theory, — viz.: that it would cost the defendant more to complete the contract, to purchase the balance, including what had been paid, than the contract price. What “it would have cost him more,” might, perhaps, be said to be one element of his damages for the non-performance of the contract, of which he could not be allowed the benefit in that suit, after having withdrawn his notice of recoupment. But whether this be so
The judgment must he affirmed, with costs.