Coates v. Sangston

Where a contract for the performance of work Is silent as to the time within which the work is to be done, the law allows a reasonable time, and the declarations of the party who agreed to do the work are admissible to show what he considered such reasonable' time. In case of a simple contract in writing, oral evidence is admissible to show a subsequent agreement enlarging tiie time or changing the place of performance, or a waiver of, or a parol suppletory agreement supplying something not in, the contract. A general reservation of thé right to object to evidence will not,' since the act of 1825, ch. 117, give any right to object in this court unless it has been availed of below by special exceptions to the portions of the testimony deemed inadmissible. The garnishees offered in evidence tiie contract under which the defendant, debtor had done work for them, and proved that they had paid certain sums for him. Help, that in the absence of proof of other dealings between the parties, it was competent for the jury to find that these sums were paid on account of the contract. Prayers that the plaintiffs could recover from the garnishees “at the rate and valuation of the contract, deducting the cost of completing it,” not taking notice of payments they had made to the debtor, are for this reason defective. The principle of recovery on a contract »a veiy different from that on a quantum valebat or meruit; in the latter the plaintiff can claim only what, under all the circumstances, his labor, services or materials may be worth. The law will not sanction a recovery upon the ground of contract when the claimant has neither performed his part of its stipulations nor shown any reason for his uon-perlbnuauco. it is not the duty of courts to instruct the jury unless applied to for that purpose, and then they may grant or refuse prayers as oifered, or add qualifications, or reject all and instruct the jury in theii own words.

Apjpjsal Irotn Baltimoie County Court, This was an attachment on warrant, issued by the appellants, on the 13th of November 184.8, against Cunningham, as an absconding debtor, and on the same day laid in the hands of the Sangstons, as garnishees. The affidavit of one of the plaintiffs, made before the justice who oideied the wilt, states, that he is credibly informed and believes Cunningham “is actually run away and fled from justice, and removed from his place of abode with int,ent to injure and defraud his creditors.” The garnishees appeared and plead: — 1st, non-assumpsit for Cunninghim; and 2nd, nulla bona in their hands. The plaintiffs joined isssue upon the first' plea and replied to the second, that the garnishees, ‘on the day of laying the attachment in their hands,” had goods, credits, &c.; ort Which replication issue was joined by the defendants. Exception. The plaintiffs proved Cunningham’s indebtedness to them in the sum of $800 and more; that he had found materials and done work for the garnishees, by building for them two houses and repairing a third, to the value of $700 each for the houses and $450 for the repairs, and that he had run away. The defendants then offered a written contract- signed by Cunningham and dated the 3rd of April 1848, by which he agreed to build for the defendants two small houses and repair a third in the mode therein particularly specified, and to' furnish all labor and materials for the same, for $1800, of which $600 was to be paid during the progress of the work, one-half of the balance in sixty days, and the residue in six months from the finishing of the work. The other evidence in the case is sufficiently stated in the opinion of this court. It may be proper, however, to state, that the set-offs and allowances claimed by the defendants consisted: — 1st, of cash paid him, or others for him, $1068.OS; 2nd,.cash paid the carpenter who completed the work $526.78. —this item included a charge of $172.36 for putting up a small brick wash-house not mentioned in the contract, on the ground that it had been pulled down by Cunningham. 3rd, cash allowed a tenant of the house repaired for his inconvenience sustained by the delay in the work $150; 4th, loss of rent of the two houses to be built occasioned by their not being completed in time $256.35; 5th, measurer’s bill $15; — making iff all $2016.21. The record then states, “that the testimony of defendants was taken subject to exceptions;’ and that “the plaintiffs objected that the testimony offered to show that Cunningham agreed to do said work was inadmissible, but the court over ruled such objection and admitted the same for the purpose for which it was offered.” The plaintiffs then offered three prayers in substance as follows: 1st. If the jury find the contract and that Cunningham did the work, <fcc., on the houses mentioned therein, and that defendants took possession of and completed them and had used and rented them, then the plaintiffs were entitled to recover for the value of the work and labor done by Cunningham at the contract valuation, deducting from the same the, cost of completing the contract, (but not deducting any unliquidated damages for loss of rent, or taking down or removing other buildings.) 2nd. The second prayer is identical with the first, leaving ¡out the portion in parenthesis. 3rd. If the jury believe the facts in the two preceding prayers, and that Cunningham, after having done the work, «fee., as proved in this case, insisted and contended that he had completed his contract with defendants, who sent another carpenter to take charge of the work and finish the buildings and repairs, and said carpenter did so take charge of the wqrk, then the plaintiffs are entitled to recover so much as the work done and materials furnished by Cunningham are reasonably worth, deducting-. All these prayers the court, (Le Grand, A. J.,) rejected, to which ruling, as well as to the opinion of the court admitting the testimony above mentioned, the plaintiffs excepted. The verdict on the first issue was for the plaintiff's, and on the second, “that the defendants, at the time of laying the attachment in their hands, had not, nor at any time since have had, nor now have, any goods,” &c., of Cunningham in their hands. The judgment was for the defendants and the plaintiffs appealed. insisted, that as the testimony was taken subject to exception, the appellants can raise here any objection apparent on the record which they might have raised in the court below, and under the exception to the evidence he argued at length the following points: 1st. That Cunningham’s statements of the time within Which he had contracted to do the work were not admissible to show what was a reasonable time for its completion: — First. Because “reasonable time” is an inference of law in the absence of stipulation, and proof of an express coutract cannot establish an implied one. A man may contract to do work in an unreasonably short time if he be sufficiently paid for it or consider himself so. Second. Because if there was any agreement the parties were bound by that, and no proof of “reasonable time” was admissible. If, therefore, the evidence was admissibly at all, it could only be as showing what Cunningham had contracted to do; and it was clearly inadmissible to prove “reasonable time,” because the instant a contract was proven, “'reasonable time” was no longer a thing in controversy. Third- Because if an agreement could be admitted to prove “reasonable time,” under any circumstances a parol agreement could not be admitted here where the parties had put their contract in writing. And Fourth. The proof of payments made to or for Gunningham was improperly admitted, because none of them were shown to be on account of the contract or work in controversy, and some of thein, indeed, were made long after attachment laid. It must be shown they were made on account of the contract; the court cannot assume that they were. 2 Md. Rep., 356, Renwick vs. Williams. In reference to the contract, the learned counsel said the main questions are: — 1st. Could Cunningham recover at all. for an incomplete contract? 2nd. Could he recover on a quantum meruit for the work done on this contract ? On this branch of the case he argued the following points: 2nd. That there being no evidence of Cunningham’s having abandoned the work or refused to complete it according to his contract, or of his inability to complete it, or of any request oil the part of the appellees that lie should do so, (lie appellees do not show a case in which they had a right to put the housed in the hands of another carpenter without Cunningham’s consent, and charge him with such carpenter’s work on the premises. 3rd. That even if Cunningham had failed, through his own default, to complete his work in the manner specified in the contract, yet as the work he actually did was valuable to the appellees and was taken and used by them, and availed them to a large extent for their purposes, they were liable to him, and to the appellants in his stead, for the value of such work, to be ascertained by deducting from the contract price the cost to the appellees of finishing the work according to the contract. In all such cases the party who partly performs a contract can recover on a quantum meruit the value of the work he has actually done. 1 Williams' Saunders, 320, Pordage vs. Cole. 1 Leigh's Nisi Prius, 78. 10 East., 306, Ritchie vs. Atkinson. 9 Barn. & Cres., 386, Oxendale vs. Wetherell. 1 Campbell, 38, Farnsworth, vs. Garrard. 1 Moody & Robinson, 219, Thornton vs. Place. 2 Crompton & Meeson, 214, Chapell vs. Hickes. 2 Smith's Leading Cases, 14. For the American cases to the same effect, sec 7 Pick., 184, Hayward vs. Leonard. 13 Met., 42, Snow vs. Inhabitants of Ware. 6 New Hamp., 492, Britton vs. Turner. 5 G. & J., 263, 264, Watchman and Bratt, vs. Crook. 1 Gill, 65, Mulliken vs. Boyce. 11 How., 475, Van Buren vs. Digges. This is not an entire contract for the parties have divided it — -a part of the money was to be paid during the progress of the work; whereas, in the cases relied on by the other side, no part of the money was to be paid until the contract was completed. As to entire contracts, see Story on Contracts, sec. 22, and 44 Law Lib., 8, 25, 26. 4th. That in any event, the damages for the alleged pulling down of the wash-house, the allowance made to (he tenant, and the supposed loss of rent on the olher houses were not the proper subject of a discount fiom Cunningham’s claim in this proceeding. The rule for the allowance of damages in such piises is, the amount it will take to put the house in the slate required by the contract,. Consequential damages will not be allowed. 8 Mees. & Wels., 871, Mondel vs. Steel. 10 Adol. & Ellis, 642, Francis vs. Baker. 2 Cranch, 342, Winchester vs. Hackley. 7 Wheat., 13, Tayloe vs. Sandiford. 9 How., 230, Withers vs. Greene. 15 Wend., 559, Sickels vs. Fort. 21 Wend., 348, Blanchard vs. Ely. 1 Md. Rep., 342, Middlekauff vs. Smith. 5th. As to (he prayers: There is no evidence that the payments proven were on account of the contract or work in controversy in this case, and consequently the first and second prayers were not defective, even if they withdrew these payments from the jury. But upon a fair construction of them there is no such withdrawal. They put the isolated question of recoupment of damages, and they would not be inconsistent with a prayer on the other side asking an allowance for these payments, which prayer it would have been competent for the appellees to offer. 1 Gill, 143, Whiteford vs. Burckmyer and Adams. The third prayer, by leaving a blank, was an application to the court to designate the proper deductions to be made, and the court erred in not making the designation. But whether the prayers are defective or not the question, as to the damages which the appellees could recover from Cunningham, is sufficiently raised by the exception to the proof offered as to such damages. In reply to the argument on the other side that there was nothing due at the time the attachment was laid and (hat this -was the only question raised by the pleadings, Mr. Wallis argued that the finding of the jury covered the case, and that it was too late now to raise any question as to the informality of the pleadings. This action was instituted on the 13th of November 1848, and the attachment was laid on the same day. The plea is, that the garnishees had not then and have not since had any goods, &c., of Cunningham in their hands, and concludes with a verification. The replication to this tenders the issue, whether there was any funds in the hands of the garnishees at the time the attachment was laid. 'I'his was all the jury had a right to find and was the only issue in the ease. By the contract it is conceded there was then nothing due by the garnishees. It is immaterial whether the payments were made on account of the contract or not, for the whole inquiry is, whether the garnishees were indebted to Cunningham. If he was indebted to them they are not his garnishees. There was evidence to show that the garnishees were entitled to credit fof'the payments they had made, yet the prayers exclude this from the jury. If the court had granted them the jury could not deduct this credit, but only the costs of completing the contract. The garnishees were also entitled to a deduction for the imperfect manner in which the work was done. If Cunningham had brought suit to recover on a quantum meruit he wrnuld be liable to this set-off, yet the prayers exclude this question also from the jury. Where a prayer undertakes to make a theory it must put in the whole case. The third prayer, in substance, asks the court to instruct the jury the plaintiffs are entitled to recover the whole, deducting nothing, and it is said this is an appeal to the court to fill up the blank; that is, that the court would try the plaintiffs’ case for them. But it is said, these questions arise on the exception to the admissibility of the evidence. The record shows no such exception; it states that the evidence was taken subject to exception, but this does not mean that the plaintiff has excepted to it. Only the part is excepted to which relates to Cunningham’s statements, and this is the only question on the testimony before this court. The contract- is in writing, and contains no stipulation as to the time within which the work was to be done. The law says it must be done in a reasonable time, and we were to prove what was a reasonable time. How were we to show it? We proved it by the strongest of all possible proofs, viz., the declarations of the party who was to do the work. We cannot add a parol agreement to the contract which is in writing, but we can show that he acknowledged he had agreed to do the work in sixty days as evidence of what he regarded a reasonable time;this is no violation of the contract. But there never -was a dollar in the hands of the garnishees applicable to the debt of Cunningham. The contract was abandoned by him and he cannot recover. It is not the case of an ill-done contract, but of one voluntarily abandoned. Could he have maintained a quantum meruit for the part he had performed? An unexecuted contract voluntarily abandoned cannot constitute the foundation of an action. This is the distinction running through all the cases, and is recognised by the case in 7 Pick., 184, cited on the other side. See also 2 Mass., 147, Faxon vs. Mansfield. 13 Met., 50, Snow vs. Inhabitants of Ware. 2 Pick., 267, Stark vs. Parker. 14 Mass., 282, Taft vs. Inhabitants of Montague. These cases show the rule in Massachusetts. For the rule in New York, see 13 Johns. Rep., 94, Jennings vs. Camp. 19 Do., 337, Reab vs. Moor. 12 Do., 165, M'Millan vs. Vanderlip. 18 Wend., 187, Champlin vs. Rowley. 8 Cowen, 63, Lantry vs. Parks. The English rule is found in 6 Dow. & Ry., 3, Bates vs. Hudson. 8 Car. & Pay., 126, Rees vs. Lines. 9 Barn. & Cres., 92, Sinclair vs. Bowles. 3 Taunt., 52, Ellis vs. Hanlen. See also 2 Greenlf. on Ev., sec. 104, and the case of Watkins vs. Hodges, et al., 6 H. & J., 38, where the very question at issue is decided. As to the deduction for rent, the authorities are all against the other side.- Speculative, contingent and uncertain damages cannot be allowed, but the cases all decide, that where the non-performance of a contract respecting real estate keeps the owner out of possession, indemnity for loss, by way of rent, will be allowed. This is decided in Middlekauff vs. Smith, 1 Md. Rep., 341, 342.