Dougherty v. Stephenson

1. The executors of a decedent, who has made an entire contract, and died before it was completed, may excuse the other party from the full performance of it, and in that event he may recover from the estate for the work already done. 2. Where evidence is given of a fact, whether the evidence as to it he clear or slight, though the Court may express an opinion upon it, the evidence should ho submitted to the jury.

Error to the Common Pleas of Montgomery county. This was an action on the case by David Stephenson v. Dougherty and Smith, executors of the will of Abraham Kunzie, deceased, surviving partner of John Earr, deceased. Eor a period immediately prior to March 1, 1847, John Earr & Abraham Kunzie were partners, carrying on the business of smelting iron ore, at Spring Mill, in the county of Montgomery; during a part of which period the plaintiff, by himself and workmen, dug iron ore for the said Earr & Kunzie; and also, at their instance, examined and proved the ground with a view to find iron ore by sinking shafts and running drifts. About February 1,1847, after the ground had been thus proved, the plaintiff agreed with Farr & Kunzie to take out of the ground, as it was then, 4000 tons of iron ore; and for each ton taken out and put on the bank, he was to receive $1.12-|-.. Plaintiff immediately after commenced operation under this agreement, and continued working until about the 1st of March, 1847, when John Farr died ; by which time very little if any ore had been taken out under the agreement. After Farr’s death, Abraham Kunzie carried on the business for awhile for the benefit of himself and the estate of Farr, till 10th July, 1847, when D. Reeves was taken in as a partner. The plaintiff proceeded under his contract after Farr’s death, until in July, 1848, when Abraham Kunzie died, by which time about 1200 tons of ore had been taken out. The action was brought to recover for taking out ore under this agreement, and also for work alleged to have been done before and after Farr’s death, not included in this agreement. August 4, 1849, a declaration was filed with special counts on the said agreement, and also the common counts for work done, &o. Pleas, non assumpsit and payment. On the part of the plaintiff, for the purpose of excusing him for not taking out the whole 4000 tons as per agreement, it was offered to prove by Peter Righter what the executors of Abraham Kunzie said relative to plaintiff stopping work. On the part of defendants, objection was made to evidence of anything said or done by the executors to induce the plaintiff to cease, or not to proceed to the fulfilment of his contract; it being alleged that the executors had no power to stop him. The Court overruled the objection, and admitted the evidence, and the defendant’s counsel excepted. . The witness testified that the plaintiff went to the executors- to see whether they would settle with him, or let him go on and do the work. Dougherty made reply that he had better bring a suit; that he would advise him, if he was his own brother, to bring suit to recover his claim. Stephenson offered to go on with the work; he waited for nearly a year to go on with the work. They told him they had no authority fór him to go on, and he should bring his suit. The admission of this testimony was the first error assigned. On part of the plaintiff it was also offered to prove by John Righter, a conversation between plaintiff and the executors of Kunzie, relative to non-completion of said contract. Objected to. The Court admitted the testimony, and the defendant’s counsel excepted. The witness said he was present when Stephenson asked the executors for permission to go on. Dougherty said if he was his own brother he would advise him to sue. The admission of this testimony was the second error assigned. Krause, P. J., charged the jury, inter alia, “that if the evidence was believed, the contract was an entire one; and the plaintiff must show that he performed all that the contract required, or that he was excused from the performance of it. That on the latter question there was evidence in the testimony of Righ'ter, that he, as Kunzie’s clerk, stopped the plaintiff from working; and afterwards the executors of Kunzie told him they had no authority for him to go on, and advised him to bring suit. That if the executors prevented the plaintiff from going on to execute the contract, if there was such a contract, he offering to go on, the plaintiff could recover for the ore he threw out.” As to the claim for stripping the soil, drifting, &c., he observed,' that if the plaintiff did such work, and wg-s to be compensated for it independently of the contract before referred to, depended on the testimony; and if the contract was, that the plaintiff was to be paid for the stripping, and also for taking out the ore in addition, he was to be allowed accordingly. He said, “it is not much insisted on, that the plaintiff was to drift and shaft and throw out the ore for $1.12-|, and it is not the view of the Court that that sum included the shafting and drifting. But that is not a question for the Court, but exclusively for the jury to determine from the evidence.” Verdict was rendered for the plaintiff for .$>1526.83. It was assigned for error: 1. The Court erred in admitting the evidence mentioned in the first hill of exceptions. 2. The Court erred in admitting the evidence mentioned in the second bill of exceptions. 3. The Court erred in charging the jury, in relation to the special contract, that the plaintiff had adduced evidence to show that he had offered to perform his part of the contract, and was prevented from so doing by the defendants; there being in fact no such evidence for the consideration of the jury. 4. The Court ought to have instructed the jury that the evidence showed a voluntary abandonment of the special contract on the part of the plaintiff, and that he was therefore not entitled to recover for anything done in pursuance' of said contract. 5. The Court erred in submitting to the jury the question whether the $1.12-J per ton, for getting out ore under the special contract, included the stripping or not, as the whole evidence on the subject showed that it did, and there was no evidence to the contrary.