56 Mo. 530 | Mo. | 1874
delivered the opinion of the court.
The plaintiffs in this ease are plumbers, and brought this suit to recover from defendant the value of materials and work done on defendant’s house. There were two counts in the petition, but as there was no dispute about the second count, it is unnecessary to notice it.
The defendants set up in their answer to the first count, that the work was done under a special contract, by which plaintiffs agreed to do the work according to certain plans and specifications, and at a fixed price for the aggregate job, and that the work was to be done to the satisfaction' of the defendant and his architect, and the city inspector. The answer avers that the work was not done according to contract; that neither the architect or city engineer or defendant approved of it — and that in various important particulars, it
It appears that the defendant moved into the house, which cost $75,000 or thereabouts, during the progress of the work of plumbing; and that he objected occasionally to certain parts of the work, which, however, were accordingly altered to suit his suggestions; that he, of course, continued to live with his family in the building after the work was completed, and made use of the various water pipes and other appurtenances and conveniences put up in the building by plaintiffs.
The court instructed the jury for plaintiffs, that if they found that the work and labor charged was done, and the materials furnished, and that the defendant used and possessed and enjoyed the same, and still is in the possession and enjoyment of the same, they would find for the plaintiffs on the first count, notwithstanding the failure to comply with the special contract, and assess their damages at the real value of the work and materials, as shown by the evidence before them, being governed by the contract price of $950 for the aggregate, as the standard of value; and if any work required by the contract was not done, or was done in an imperfect manner, a proportional deduction should be made from the contract price. The jury were directed to allow interest at 6 per cent, from the time suit was commenced.
Several instructions were asked by defendant, but they were based upon a view of the law, which will be hereafter considered.
The jury found for the, plaintiff on the first count, $1121 —and in regard to the counter-claim, found for the plaintiff'. On the second count, about which there was no controversy, the finding was for $121.60. Altogether, the plaintiff’s damages were assessed at $1342.60. There was a judgment accordingly, which was affirmed at the General Term by a divided court.
We find, in Parsons on Contracts, Vol. 2, part II, § 5, a brief summary of the legal theory on which this case was tried. It is as follows: “ When parties make a contract that is not apportionable, no part of the consideration can be recovered in an action on the contract, until the whole of that for which the consideration was to be paid, is performed; But it must not be inferred from this, that a party, who has performed a part of his side of a contract, and has failed to perform the residue, is in all cases without remedy. For, though he can have no remedy on the contract as originally made, the circumstances may be such that the law will raise a new contract, and give him a remedy on a quanhom meruit.” * * •* “ If one party, without the fault of the other, fails to perform his side of the contract in such a manner as to sue on it, still, if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part, to pay such a remuneration as the benefit conferred is reasonably worth, and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable.”
In Lee vs. Ashbrook, (14 Mo., 379) the court decided that “ although a party has abandoned his work before completion, without just cause or legal excuse, yet if the other party to the contract receives it, makes use of it, and is benefited by it, he ought still to pay the value of the work, not exceeding the contract price, if that value exceeds the damage he has sustained by reason of the failure to complete the work.
In Marsh vs. Richards, (29 Mo., 105) this position is reiterated, “although,” observes Judge Scott, “it is generally true that' a party must perform his contract before he can be entitled to the compensation due on its performance, unless it is otherwise stipulated, yet there are cases in which the services rendered by the contractor, are valuable to him for whom they were performed, and he has expressly or tacitly accepted them. In such cases, although the work has not been done within the stipulated time, nor in the manner or with the materials reqnired by the terms of the contract, he who performs the work may recover what it is reasonably worth to the owner, not exceeding the contract price.”
In Lamb vs. Brolaski, (38 Mo., 53) the case of Lee vs. Ash-brook is again cited, and it is declared that, although the work had been badly done, and not according to contract, yet the party accepting the work ought still to pay the value of the work received, not exceeding the contract price, if that value exceeds the damage sustained by reason of the failure of the other to complete the work as agreed. “Such damages,” (observes Holmes, J.) “ are to be considered in diminution of the contract prices. The plaintiff was entitled to recover on this petition, only the actual value of the work done by him, and received by defendant, within the limits of the contract prices. The matter of the damages entered into the inquiry as to the actual value of the work done by him, and that was the very thing in issue. The benefit and advantage which the defendant took by the work done, was the amount of value which he received, if any, after deducting the amount of the damage. Britton vs. Turner, 6 N. H., 494.”
In Creamer vs. Bates, (49 Mo., 525) the same question is discussed and the same conclusion reached, and the cases of Marsh vs. Richards and Lowe vs. Sinclair, are cited with approbation.
These eases and others which might be cited, are sufficient to show that whatever diversities of opinion may have prevailed elsewhere, the law as quoted above from Parsons on Contracts, and which is and has been always the law in Massachusetts, may also be regarded as the settled law of this State. Under the restrictions adopted here, it is obviously con
This is, in substance, the law declared by the court on the trial of this case.
The effect of acceptance in the present case, and cases of similar kind, in establishing a waiver on the part of the defendant, of any rights he had under the contract, is certainly difficult to be maintained. When the work and labor and materials have been expended in the production of an article contracted for, not connected in any way with the property belonging to the party at whose instance the work has been done, the latter is at liberty to accept the same or not, as he chooses, and if he does accept, that is certainly a very clear indication of an intention to waive any defects so far as such defects might conduce to a defense against any recovery upon the contract, and such was the ease of Thompson vs. Allsman, (7 Mo., 631) where the defendant received the boats that were built for him. But where the plaintiff or contractor has done work on the house of defendant, the fact that the defendant continues to live in his house, can hardly be regarded as an acceptance of the work, as a waiver. So where a laborer, who has hired himself to work on a farm for six months, and leaves at the end of one month, his work during the month cannot be repudiated or accepted — its results are such as cannot be separated from the necessary consequences of ownership — and that the owner, in such cases, retains his farm, or continues to live in his house, is no evidence of waiver or acceptance. But this idea of acceptance, as a waiver, is not the ground upon which courts have allowed a recovery on a quantum meruit count. It is because the
There was evidence in this case, that the work done by plaintiffs was of no value to defendant, and was, in fact, an injury to his house, but there was evidence also, that the work was fully worth the prices charged in the petition and account, which exceeded the contract prices. We must take it, under the verdict, that the work was worth the contract price to the defendant; we must also assume that the defendant was not injured by any failure of the plaintiffs to comply with the specifications of the contract — for the jury have so found under the instructions.
A prominent objection set forth in the defendant’s instructions to any recovery in this case, is based on that part of the contract, which requires the approval of the architect and city inspector and proprietor of the work — and as there was no such approval, it is insisted that there could be no recovery. There certainly could be none in a suit on the contract, but this action is not on the contract. It'is conceded that the conti’acb was not complied with, and that the architect and city inspector pronounced the work incomplete, and totally inadequate to the requirements of the contract. But as the action was upon a quantum vatebat, the only question for the jury was upon the actual value of the work used by defendant; and on this question the opinions of the architect and the city inspector were before the jury, as were the estimates of the witnesses, and the jury disregarded the opinions of the architect and the city inspector, and thought proper to follow those of other witnesses. As these witnesses were all alike competent, it is out of our province to interfere with a verdict rendered on their evidence. When it is established that a contract maybe abandoned, and a suit upon quantum meruit or quantum valebat be maintained, it follows that this provision in regard to the persons selected to decide on the compliance with its specifications, is of no avail as a defehse. Their testimony stands on the same ground as that of other witnesses. The ground of recovery is the reception and use of materials
The objections to the verdict and judgment in this case are not referable to any points of law decided by the court which presided on the trial, but to the finding of the jury, which did not exceed the contract price, and the court is bound by such finding. We shall, therefore, affirm such judgment.