Thompson v. Phelan

Where the plaintiff’s declaration contained but one count, and that a general one for work, labor, and services done and performed; a motion to amend the writ by adding two new counts; one for use and occupation, and the other for goods, wares, and merchandise, sold and delivered, will not be granted. Such an amendment is for a new cause of action, and cannot be admitted unless by the consent of the defendant. When a contract to do certain work is put in writing, and no time fixed for the completion of the work or the payment for the same, the inference of law is, that the work is to be paid for when the labor is done'; and an action for labor and services cannot bo sustained therefor until the work is completed, or the contract in some legal way terminated. Parol evidence showing a verbal agreement, as to the time of payment,' made when the contract was signed, cannot be admitted. When neither the debtor or creditor makes an application of payments, the law will apply them to the earliest debt due at the time of payment, if there is no particular equity or reason for a different course. In making the application of payments, the principles of equity are recognized at law, so far as the nature of the proceedings will admit.

Assumpsit. The writ was dated April 15th, 1846, and contained one general count only, for the sum of one thousand dollars, for the labor and services of the plaintiff, done and performed for the defendant before the date of the writ. The plaintiff moved to amend his’writ, by adding a count for goods, wares, and merchandise, sold to the defendant, to the amount of three hundred dollars. Also, a further count for two hundred dollars for the use and occupation, by the defendant, of the plaintiff’s dwelling-house and furniture therein. An auditor having been appointed to state the accounts between the parties, reported, that he had met and heard the parties, and examined their vouchers, and that he stated the accounts as claimed in the writ and specification and the defendant’s set-off, and proved before, him, as follows: — William Phelan to Joseph C. Thompson, Dr. February, 1846. To work done for him in the pit in Fifield field, on N. Railroad, $74.00 To work done in Mr. Lundy’s pit for him on said road, 20.62 To hauling stones from Waldron’s ledge to Colby Culvert, thirty-six days, 36.00 March. To sixty days drawing stones from Wal- ' dron’s ledge, 60.00 April 1. To shoveling and hauling on Mr. Keniston’s . land, 2248 yards of earth at nine and a half cents per yard, 213.56 $404.18 Joseph C. Thompson to William Phelan, Dr. January 25,1846. To one pair of overhauls, $0.67 “. One pair boots, • 2.50 “ 26. To one pair boots, 2.50 “ “ To one barrel of flour, 7.50 February 12. To two new ox sleds, 8.63 “ 14. To one barrel of beef, • 10.50 “ 28. To work of ten men, $46.25; deducting “ “ $34.50 for their board, 11.75 April 10. To three beef barrels, 1.50 $45.55 The last item in the plaintiff’s account was founded upon- a written contract in the following words, viz.: February 9,1846. This certifies, that I, William Phelan, have agreed to pay Joseph C. Thompson nine and a half cents per yard for raising the embankment across Jonathan Kenniston’s intervale, and what gravel is borrowed to be taken from the hill in Kenniston’s field nearest the grade. (Signed) William Phelan. It was proved that the plaintiff began to work on said embankment about the eleventh day of February, 1846, and continued to work upon it until the early part of May of the same year, and then left it in an unfinished state, having placed upon it thirty-nine hundred yards of earth, two thousand two hundred and forty-eight yards of which were placed upon it before April 1st, 1846. The plaintiff proved that at the time of the execution of said agreement, it was agreed that he should be paid at the end of each month, for the work done upon said contract therein. To the competency of this evidence the defendant objected, and contended that the plaintiff could bring no action to recover payment for said work until he had finished the embankment. It appeared that the engineer of the railroad made returns monthly to the directors, of the above and the other work estimated as done by Phelan, who was a contractor for the construction of part of said road. It did not appear that any time was fixed in the contract between the parties to this suit, for the performance of said work. The auditor further reported, that the plaintiff proved the following additional charges, which he did not consider recoverable under the declaration in the plaintiff’s writ, but were material to be considered*in reference to the application of certain payments, hereafter stated, viz.: November 22, 1845. To use of house and some articles of furniture, proved, $105.00 January, 1846. To single sleigh, 12.00 $117.00 The defendant also proved the following charges in his set-off, which accrued after the commencement of the present action, viz.: — ten items •comiheneing with June 17th, 1846, and ending March 2d, 1847, amounting to $26.43. The defendant also proved that he made the following payments in cash to the plaintiff upon general account: February 16,1846. Cash $10.00 April 9, “ Cash, as per receipt 27,00 “ Cash by order on railroad 150.00 May 1, “ Cash paid A. J. Cilley, on P. Gr.’s order, 15.00 “ 14, ■ “ Cash 50.00 “ Cash paid Gr. W. Thompson, 2.00 July 10. « W « “ “ Cash 23.00 Sept. 4, u Cash 3.00 $280.00 The work charged by the plaintiff in his account before stated, in all the items except the last, was done by him by the day for the defendant, on the fifteenth section of the Northern Railroad, which the defendant had taken to grade and complete the masonry thereon. The plaintiff continued to work for the defendant, both by the day and under said contract, after this suit was commenced; and on the 27th of October, 1847, commenced another suit, which is now pending. The defendant further proved that he made the following payments expressly on account of work done by the plaintiff on the fifteenth section of the Northern Railroad, viz.: March 5, 1846. Cash, as per receipt, $20.00 April 16, “ Cash, as per receipt, 25.00 $45.00 The defendant also proved a note against the plaintiff, described in his set-off, for $125, dated February 7,1846, and payable to the plaintiff or order, on demand; on which was paid and indorsed, February 13, 1846, $40, and on which there was due, at the date of this report, $105.99. The above sets forth so much of the report as is necessary for a proper understanding «of the case.' The auditor having stated the facts, referred them to this Court for their determination. '• The second suit, referred to in the foregoing report, was commenced by said Thompson against said Phelan, October twenty-seventh, 1847 ; and was referred to the auditor at the same time with the former'suits. The amount of the plaintiff’s specification in this case was $536.85. Of this sum the auditor found due the plaintiff, at the time of his report, $448.03 ; of which $148.68 was for work done on the Kenniston land. And in regard to the work done on the Kenniston land, the auditor further found, that if nothing was allowed the plaintiff in the former suit, on the ground that that action was brought before the right of action accrued, then the sum of $237.50 should be substituted for the sum of $148.68, thereby making the amount of the specification. He also found that the whole work done on the Kenniston land amounted to $362.24. Of this sum $124.74 was not allowed in this suit, because the specification was not large enough to cover the whole $362.24. The auditor stated the plaintiff’s account as found by him, as follows: William Phelan to Joseph O. Thompson, Ur. April, 1846. To hauling sleepers, $2.00 To shoveling and hauling 1,652 yards of earth on Kenniston’s land, at nine and a half cents per yard, 148.68 To drawing hay from New London, 5.50 July, “ To work done on upper bridge, near Stuart’s, 60.00 To cutting 300 sleepers, 6.00 To timber for bridge, &c., 5.00 To use of wagon, &c., 20.00 To chain, • 2.00 Sept. “ To one mow of hay, 24.00 Nov. “ To work in widow Whittier’s pasture, 17.75 To oxen to Stuart’s and Cilley’s, 75 To drawing cars and jigger, 50 To moving Kelley, 2.00 To twenty perch of split stone, 10.00 To splitting and hauling stone for railroad bridge near Jona. Kenniston’s, at one dollar forty-one and a half cents per perch, $243.85 — less $100, .paid by G. W. Nesmith, ' 143.85 In this report, the auditor referred- to the various items of debt and credit, as stated in the report in the former action, and submitted the whole matter to the determination of the Court. The amount of the plaintiff’s account in the first suit, as proved by the auditor, except the last item for the work on the Kenniston land, is $190.62 Amount found under amended counts, if received, which the defendant does not admit, is, 117.00 $307.62 The last item should not be allowed, being for work on a job not completed, and under a contract still subsisting at the time of bringing the suit. To enable the plaintiff to sue for the work generally, he must have abandoned and rescinded the special contract before the bringing of the suit. Britton v. Turner, 6 N. H. Rep. 481. So he must have notified his employer and demanded an adjustment. Ibid. 495, 496. When the suit was brought the contract was still subsisting and the work in progress, and the plaintiff could not sue for and recover a part of an entire sum, which, by the completion of the contract by him, would be due from the defendant. Waddington v. Oliver, 5 Bos. & Pul. 61. By the terms of that contract, which was in writing, the completion of the entire job was a condition precedent to the payment of the money. Nothing having been stipulated as to the time when the job was to be done, or the money paid, the law implies that the work was to be done in a reasonable time, and the price then paid. And we say that it was not competent to vary either, by parol. And, besides, had it been proven by competent evidence that the defendant was to pay monthly, the plaintiff must count specially. The amount, then due the plaintiff, if the amended counts are received, is $307.62. On the other hand, by way of set-off, the defendant is to be allowed his note, $105.99, and account before suit, $45,55, which sums, taken from the amount of $307.62, leaves, as found for the plaintiff, the sum of $156.08. There are payments on account generally, some before and some after the suit, amounting to $351.43. At the time these were made, there was no application by the defendant and none has since been made by the plaintiff. Under these circumstances, the Court will apply the payments according to the justice of the case, and the 'probable interest of the payer. They will apply them to those debts which concerned him most to discharge. At the time the payments were made, nothing in fact was done upon the contract to raise the embankment, and therefore none of the money should be applied on that. The special contract was still subsisting and not abandoned, and under it nothing had been earned. If it be regarded as abandoned, the defendant had paid more than enough to pay all that was due at the time. But even if the plaintiff had been entitled to recover pay for his work under the special contract, so much as it was reasonably worth, after deducting damages for not completing the job, still we say that the money paid must first be applied to the debts about which there was no dispute, leaving the other matters to be liquidated and settled. Pattison v. Sill, 9 Cowen, 747; and note b, page 773, and authorities cited ; Goddard v. Cox, 2 Strange, 1194. And so, advances on account generally, for work under several distinct contracts, must be applied, in the first place to the ex-tinguishment of the amounts due on such contracts as have been completed, and not of those which have not been completed. McDowell v. The Blaelcstone Canal Co., 5 Mason, 11. And again, the payments must be applied to the oldest debts first. Alliston v. Carter, 4 Har. & J. 351; U. States v. Kirlcpatriclc, 9 Wheaton, 720 ; Pairchild v. Salley, 10 Conn. 175 ; McKenzie v. Kevins, 9 Shep. Rep. 178 ; Brody v. Z7. States, 1 Wood. & Minot, 160; 11 Met. Rep. 194. As to the second case we say, that the second item in the plaintiff’s account should be struck out, because the work was done under a special contract, stated in the report in the other case, and. the facts do not authorize a resort to the general counts. It does not appear that the plaintiff has ever notified the defendant that this special contract was abandoned and rescinded, or that he made any offer of adjustment or demanded payment of the defendant. Until that is done, no action can be maintained. The rights of the parties are governed by the special contract so long as it stands, and while it so stands, the defendant is in no default if he does what that requires of him. When that is abandoned by the other party and he is notified of it, and an adjustment and payment demanded, then the defendant must be prepared to pay what is reasonable after deducting the damages sustained by him. If he does not, he is in default; but until such notice and demand he has the right to consider the contract in force, and by the terms of that he is not bound to pay. So is the intimation of Parker, J., in Britton v. Turner, 6 N. H. Rep. 496. There is then to be deducted the balance of the sums paid generally, after satisfying the demand due the plaintiff in the other suit, which balance is $195.40; leaving due the plaintiff $103.95, if the last item in his account can come in.