Birlant v. Cleckley

1. Charge. — The Circuit Judge charged substantially as alleged in the exception. 2. Exception. — The exception held sufficient. 8. Practice — Pleading—Quantum Meruit — Contract.—A plaintiff cannot recover for a quantum meruit on a complaint setting up a specific contract. 4. Case Distinguished. — Tarrant v. Gittelson, 16 S. C., 231, distinguished from this case.

Before Benet, J., Charleston, Action by I. Birlant against M. M. Cleckley, doing business under the name and style of the Folding Trunk Company, upon a special contract for services. The following is' so much of the charge as is necessary to understand the questions: Although all of you are business men, it may be proper for me to briefly instruct you what is meant by a contract. A contract is an agreement between two or more parties to do some particular thing, or it may be an agreement not .to do some particular thing. The underlying principles of the law of contracts is that it must be an agreement of the minds of the parties, showing that they proposed the same thing, and that they meant the same thing in the same sense. There is no contract or obligation unless the parties assent to the same thing in the same sense. Their consent and intent must be in harmony. Their understanding of the terms of the contract must be the same. They must agree in mind, and this agreement must be binding on both, for without this meeting of minds of the parties, and without this mutuality of obligation, there is no contract. When a contract is in writing, it is the duty of the Court to construe it, and I shall do so later on in my charge. As to the terms of a written agreement, the law does not allow parol evidence to vary or change its terms, but at the same time a contract is not like the laws of the Medes and Persians, fixed and unchangeable, for both parties to the contract, either written or verbal, may, after executing the original contract, agree to alter or modify, or even to rescind or annul, the contract. But the same rule governs here, namely: that it must be shown that they assented to the same alterations or modifications, or rescinding of the contract. There must be the mutual understanding and the mutual obligation. At this point I shall take up the requests to charge. The plaintiff requests the Court to charge as follows: I. That in order to rescind, or alter, or modify a partly executed contract, there must be a mutual, meeting of the minds, and that there can be no mutual meeting of the minds unless both parties understand the alteration, or modification, or rescission, as affecting the contract' in the same way, and they must assent to the same thing in the same sense. I charge you that is the law. II. That when a written agreement exists, and one of the parties sets up an agreement of a different nature, he must clearly show by the preponderance of the evidence his own understanding, and that the other party had the same understanding, and must prove a clear and convincing case of actual rescission, or alteration, by reason of reasonable corroborative proof. I so charge you, and state here that the measure of proof demanded of him is the preponderance 'of the evidence on that point. He must satisfy the jury, not beyond a reasonable doubt, but that is more likely than not that such is the case. III. That since the burden of proving this contract is on the party alleging it, if this proof is not clearly by the preponderance of the evidence made, then the jury must find that there was no meeting of the minds, and hence no rescission or alteration. I so charge you. IV. That a person employing another for a definite term is bound to provide him with labor for the whole term, and cannot deduct from the wages of the servant for time that he was not at work, when the failure results from his (the master’s) own fault. The fact that the business proves unprofitable is no excuse. If the master chooses to go out of the business, he can do so; but he must pay the servant his actual damages for not employing him for the term. That is the law, and I so charge you. V.,.That it is the duty of the master to pay according to the contract, and he cannot, by neglecting to perform his duty in that respect, charge the servant with having waived his right. I so charge you.' VI. That au alteration may be made as to one part of a contract, the part unaltered remaining still in force. That is the law. VII. That if the jury find there was a parol alteration of the contract, then the alteration and remaining part of the original written agreement form one parol contract. That is the law. It means that if there is evidence in this case that there was a parol alteration of the original contract, an alteration by words, then that alteration, so far as it goes, joined with what was unaltered in the original contract, would be a new contract, and be called a parol contract. VIII. That if the jury find there was an alteration, and the alteration was not made as to the time the original contract was to continue, then the new parol contract, consisting of the alteration and the remaining part of the original written agreement, is void, being a parol contract for service for the term of five years, and hence within the statute of frauds. That is the law. Under the statute of frauds, which is in force in this State, it is held that no action shall be brought on any agreement that is not to be performed within the space of one j'ear, unless such agreement, or memorandum thereof, shall be in writing, and signed by the parties thereto. If you come to the conclusion in this case that there was an alteration as to the original terms of the contract, but there was no alteration as to the five years, then that new parol contract would be void, because within the statute of frauds. It would then be a parol agreement, and no action could be brought' on such an agreement, because the time is more than a year, viz: five years. IX. That an alteration may be made as to one part of a contract, the part unaltered still remaining in force, and if the jury find that the new contract was for five years, and hence, under the instruction of the Court, void, then the plaintiff is entitled to recover a quantum meruit for his services. That is the law. While he could not'bring an action under the contract, he would be entitled to the value of his services proved in the case. So if you come to the conclusion that there was an alteration consented to by both of the parties making a new parol contract, but if you find that alteration did not affect the five years, then that.contract would be void as a contract, but the plaintiff would be entitled, nevertheless, to recover the value of his services. X. That the construction of the contract is a question for the Court, and, by the terms thereof, it is submitted that it went into operation from the date thereof. That is the law. The execution of the contract was August, 1893. If you believe that these parties did sign this contract on that day, and did each understand the terms of the contract, and they are presumed to have understood it, unless there is competent evidence from the outside to the contrary, then this contract was binding upon them from the date of its execution. Under the instructions I have already given you, these parties, subsequent to the execution of the contract, could, by mutual consent or agreement, modifjq alter or rescind it. But without the light from outside testimony going to show the subsequent alteration or rescinding, the contract stands, and is binding upon those parties from the date of its execution. The defendant asks the Court to charge the following requests: I. If an agreement be made which is inconsistent with former agreement, so that they cannot subsist together, the old one is impliedly discharged by the new one. I so charge you. II. A simple contract may be discharged by a subsequent parol agreement, whether the original contract were reduced to writing or consisted of spoken words. I so charge you. III. The very moment the meeting of the minds is completed, and it is understood between .the parties that the contract is ended now and forever, it is so ended. It may be done by conduct as well as by word. I so charge you, although I should prefer the word “acts” instead of “conduct.” With this alteration, I so charge you. So much, gentlemen, for the law of the case, as embodied in my general charge, and the requests of both parties. You are the sole judges of the testimony. It is for you to say whether the plaintiff has established his claim by the preponderance of the evidence. He charges that the defendant owes him about $1,100 under a contract which he says still exists, on which he says he performed his part to the 21st of January, 1896. He says he has been paid $720 of what is due him, and asks for a verdict for the balance. Before he can get a verdict, he is bound to establish his claim by the greater weight of the testimony. The ‘ burden of proof is upon him. So, also, when the defendant, in her defense, sets up the plea that the contract admitted by her was set aside, she is bound to satisfy you, by the preponderance of the evidence, that it was so set aside; and, to do so, she must show you not only that she understood it to be set aside, but that he so understood. The minds must meet not only in the making of the contract, but in the unmaking of it. She is also bound, by the same measure of proof, to satisfy you that the work he did was done by piece-work, and not under the original contract, and that he has been fully paid. That two-fold defense of. the defendant cannot be established, unless she has satisfied you by the preponderance of the evidence. But, even if she fails to establish her defense, that would not necessarily compel you to find for the plaintiff, because he is not relieved, by the failure of the defense, of the burden of proving his complaint. He must prove the allegations of the complaint by the preponderance of the evidence. Judgment for plaintiff. Defendant appeals. cites 16 S. C., 196. cite: Office of exception: 43 S. C., 99,115; 24 S. C., 75; 17 S. C., 280. Amendment to allege quantum meruit: 16 S. C., 231; 7 Hem., 80; 27 Hem., 452; 83 N. Y., 487; McM. Eq., 317; 14 S. C., 6; 16 S. C., 193.