Pierson v. Smith

Brooke, J.

(after stating the facts). In instructing the jury, the learned circuit judge said:

*297 “So the first thing for you to determine, gentlemen, in this case is, What was the contract? Were all of the details, in a general way, understood by the parties? What did their minds meet upon? Was it to be a barn without reference to any details, without reference to any other bam as is claimed by the plaintiff in this case, or was it to be a barn built with a silo similar to Mr. Chamberlain’s bam, varying in its width, length and proportion?”

It is the claim of the defendant with reference to this instruction that the parties were in substantial accord upon this, point and that the barn to be constructed by plaintiff for defendant was to be similar to the Chamberlain barn, varying only in proportion. We are satisfied that this contention is correct and that the agreement between the parties as to the character of the structure to be erected took the place of the “plans and specifications” mentioned in the contract, but never prepared. The question, therefore, as to whether such agreement was made between the parties should not have been submitted to the jury. We reach this conclusion largely upon the testimony of the plaintiff, who testified:

“A. The first talk we ever had I think the first day I was over there, we drove to see a barn built the year before for Chas. Chamberlain. The first thing •he said to me about a barn was he wanted me to duplicate that bam as near as I could; that he was satisfied with that job, didn’t expect to get anything better.”

Many other expressions of the plaintiff scattered through the record indicate that the minds of the parties met upon this basic question.

Upon the measure of damages, the court instructed the jury as follows:

“If you find that the defendant is correct in his theory he was to pay for the team work and that is to be deducted from the amount you find otherwise to be due from $3,000 yet unpaid. There seems to be a *298 difference between the two parties of some $300, one claiming $2,703.51, and the other $2,456; that it comes about from figuring on this silo. So it is a matter for you to take into consideration when you find the amount that was yet unpaid upon the contract price of $3,000, then you will, if you find in favor of the defendant, as to his theory, you should deduct from that amount what you. find it would be worth to put the barn back, or what he has expended in trying to put the barn in such shape it was contemplated it should be.

“On the theory of the defendant in this case, he claims that the barn has not been completed and asks the court to charge the jury that the plaintiff cannot recover in this case. I take another view of it. I think when he took possession of the bam he took it upon himself to go to work and repair as .he did. It was his duty to minimize the damages as much as possible, make them as light as possible, if he had reason to believe that the barn could be nut in shape to use it, he had a right to do it.

“It was contemplated, beyond dispute, in this case, by both parties that the bam would be in shape for haying time. If it was in condition- and in such shape it was safe to use, he had a right to use it. If it was not in a safe shape to hold crops contemplated it should hold, then the other party should be held responsible in such damages as defendant has suffered by reason of its not being up to what the law requires a man-should do, or what the parties had agreed upon should be done. The jury has no right to make a contract different from what the parties have made. It is your duty to ascertain what the contract and arrangements were. Consider all of the evidence and arrive at what you believe to be a reasonable conclusion as to what arrangements the parties made. If they don’t meet upon a certain proposition, then the law says what the duty of each is.

“It is the duty of the plaintiff to build in a workmanlike manner the barn, and within a reasonable time in view of all that had been talked of and in view of what was desired by the defendant and what the plaintiff understood he wanted, and unless interrupted or deterred from carrying that out within that time *299 by something beyond his control he would have no excuse or reason to offer for not having complied with it; if he thereby left the building in such shape it became injured or weakened because of the use on the part of the defendant, then he must make it good to the defendant.

“So you have the right and it is your duty to inquire into the reas.ons of its being deferred; whether consented to on the part of the defendant; did the plaintiff exert himself, use his best endeavors to fulfill the contract that the law required he should fulfill within a reasonable time if they don’t agree upon it, which the law required him to fulfill but if they did agree upon it, that it was to be done before haying, he should have done it.

“If he left it in that condition, it became weakened by loading\hay into the barn, it becomes his duty to make it good, any defects that might exist. He was in law bound to do a workmanlike job and if he has failed to do it and put the other man to any expense or damage by reason of his not doing it, that should be deducted, whatever'that damage is you find to be, should be deducted from what otherwise might be due to him upon the contract.”

It is strongly urged on the part of the defendant that in this instruction the court was in error in that it is assumed that the plaintiff had substantially complied with the terms of his contract and that the building, if completed according to the contract, would have been worth no more than $3,000. And it is asserted that the question of substantial performance should have been submitted to the jury as a question of fact, and that the measure of damages should have been placed before them upon the theory that the defendant' was entitled to the building he had contracted for, even if such building would be worth, when completed according to the contract, much more than the contract price. The record contains testimony introduced on the part of the plaintiff that the barn could not be constructed for $3,000, but would cost about $3,800. We are constrained to aeree with the contention of the *300 defendant upon this point. In the case of Eaton v. Gladwell, 121 Mich. 444 , the rule of damages in a case similar to the one at bar is laid down as follows:

“The true rule to be applied in a case like the present, where it appears that, at the time the defendant took possession, the building could not be made to comply with the contract without its entire demolition, and was of less value than the one contracted 'for, is the value of the building as so completed, not exceeding the contract price, less the damages sustained by the defendant by reason of plaintiffs’ failure to perform their contract. These damages consist of: (1) The rental value during the time the completion was unnecessarily delayed. (2) The difference between the value of the building’ actually tendered and that contracted to be built, less the difference between the agreed price of such contracted building and the reasonable value of that which was built; or, in other words, the damages are the difference between the house contracted for, if worth more than the price agreed to be paid, and such price. This would give the defendant the benefit of his contract.”

A similar question arose in Germain v. School District, 158 Mich. 214 , where it was said, in commenting upon an instruction substantially the same as the one given in this case:

“The vice of this instruction is that it assumes that all the plaintiff was bound to do was to furnish a building worth the contract price, whereas he was bound to furnish a building according to the plans and specifications, even though it were •worth many hundreds of dollars more than the contract price. Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications.”

*301 See, also, Snider v. Building Co., 139 Minn. 413 ( 167 N. W. 108 ), where the question here involved is fully discussed.

Upon this point, it is urged by the plaintiff that no requests (except a request for direction of a verdict in his behalf) were presented by defendant. This is true; yet it is, nevertheless, the duty of the court to instruct .the jury correctly upon pertinent matters of law, even when not requested so to do. Jageriskey v. Railway, 163 Mich. 631 .

Particular emphasis is placed by appellant upon the following alleged erroneous instruction:

“The most that I can say to you now in this case is take it under your consideration. It has taken some time to put in all of this testimony, but take it under your consideration and render such a verdict as you believe will be fair between these parties, one that will accord, in your judgment with the evidence in the case.

“In the first place, it is the duty of the plaintiff to satisfy you by a preponderance of evidence that his. claim is a just one, a true one, that his claim is honest and based upon the evidence in the case. If you are satisfied by a preponderance of evidence that his claim, is of that character then you can render a verdict in his favor. If the evidence is equally balanced upon that proposition, then he is not entitled to recover, but if it in the slightest degree outweighs the testimony produced by the defendant, he should recover such sum as you find to be his due.”

And it is said that by the use of this language the court invited the jury to formulate their verdict from abstract notions of what is right between man and man. We are of the opinion that the quoted paragraph is objectionable under our decisions. Roby Lumber Co. v. Gray, 73 Mich. 356 ; Hyde v. Shank, 77 Mich. 517 .

Other errors are assigned upon portions of the' *302 charge and upon the denial of the motion for a new trial. They require no consideration.

The judgment is reversed, with costs of both courts, and a new trial is awarded.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.