Austin v. Keating

• Decision Date: 15 February 1886
• Citation: 21 Mo.App. 30
• Parties: D. AUSTIN ET AL., Respondents, v. GEORGE J. KEATING, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 30

D. AUSTIN ET AL., Respondents,

v.GEORGE J. KEATING, Appellant.

Kansas City Court of Appeals, Missouri.

Feb. 15, 1886.

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.

Affirmed.

Statement of case by the court.

The petition contains three counts. The first count is based on a contract, of date July 19, 1883, whereby the plaintiffs agreed to furnish and put in defendant's dwelling house in Kansas City a furnace for heating it. The contract specified the quality and dimensions of the furnace, and its heating capacity. The contract price, for which suit was brought, is nine hundred dollars. The second count is based on a quantum meruit, for the value of the furnace, and work done. The third count is for other material furnished and work done by plaintiffs in and about the house. This last count is not disputed. The jury found the issue on the first count for defendant, and no question is made here as to it. The controversy is as to the issues arising on the second count. The defendant claims that the furnace wholly failed to answer the purpose for which defendant contracted, while the plaintiffs claim that defendant, after discovering its defects, continued to hold and use it under circumstances which entitle plaintiffs to recover for its reasonable value to the defendant. After the furnace had been in defendant's house for some time, and efforts had been made by plaintiffs to rectify its imputed defects, the defendant sent plaintiffs the following letter:

“KANSAS CITY, MO., January 12, 1884.

Messrs. D. Austin & Co.

GENTLEMEN:--Your steam heating apparatus you placed in my dwelling house still does no good, and fails to heat the premises, hence I now notify you that I will not accept it, but that the same remains your property, and that without any further annoyance in the meantime to the members of my family, I want you to remove the same from my premises as soon as winter is passed and season so same can be taken out of the house without endangering the health of the members of my family.

Yours,

GEO. J. KEATING.”

To which plaintiffs sent the following answer:

“January 25, 1884.

Geo. J. Keating, Esq.

DEAR SIR:--I was surprised to get your letter dated January 12; sorry to see the unfairness which seems to have prompted the same in all its bearings. But in reply would say that we recognize the fact that a contract exists between us and by which both parties are bound. We, as one party to the contract, have complied, as we suppose, to the expressed conditions of the same. If it should appear otherwise to you, and you will be good enough to name wherein we are at fault, we stand ready and willing to carry out each and every provision of the same, as we understand our duties to be in the matter, and, if after further efforts upon our part you still remain dissatisfied, we will further agree to select a practical steam man, whose duty it shall be to confer with another one, who is practical, that you may select, and they two shall proceed to examine the work in all its details, and we will agree to make good any part that shows a deficiency in workmanship or want of proper construction. And in case such two persons cannot agree upon a decision, that they have the right to call in a third person to act with them, and a majority of the board so called shall constitute the decision. We are confident that we can do, have done and are doing steam heating of much greater magnitude than yours to the entire satisfaction of the parties.”

To this letter defendant made no reply. Defendant continued to use the furnace so long as fires were needed in the house that season, and until after first of April following.

The court after rejecting all, save one, of the declarations of law asked by defendant, gave the following instruction applicable to this issue:

“3. If you find that the plaintiff failed to comply with the terms of the contract, then you will consider the evidence with respect to the second count, and with respect to this you are instructed as follows:

If the plaintiff did furnish material and put into defendant's house a heating apparatus, and considering the same as it was done and the purposes for which it was designed, it is of value to the defendant, and that the defendant has and does use the same and keep it in his house, then you will determine what that value to the defendant is, and from this value you will deduct the damage, if any is shown, which the defendant has sustained by reason of the failure on the part of the plaintiffs to comply with the terms of their contract, and the balance, if any there is found for the plaintiffs, you will allow them on the second count. If the work is really of no value to the defendant, or if of some value, and the said damages exceed such value of the apparatus to the defendant, then you will find for the defendant on the second count.”

The jury returned a verdict for plaintiffs in the sum of five hundred dollars. Defendant has brought the case here on appeal.

P. S. BROWN and C. O. TICHENOR, for the appellant.

I. Will this court force a man to take an article which is of no use to him; which he does not wish, and which is the opposite of the thing contracted for? To sustain the instructions asked by the defendant and refused, we refer to the following: Maxwell v. Brown, 39 Me. 101; Remick v. Sanford, 120 Mass. 316; Brewster v. Taylor, 63 N. Y. 587; Yeats v. Ballentine, 56 Mo. 530; Haysler v. Owen, 61 Mo. 275; Compton v. Parsons, 76 Mo. 455; McCormack v. Gilliland, 76 Mo. 656.

LATHROP & SMITH, for the respondents.

I. The law as laid down by the circuit court has received the express sanction of the supreme court of the state in repeated adjudications. Yeats v. Ballentine, 56 Mo. 530; Haysler v. Owen, 61 Mo. 270; Eyerman v. Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313.

II. Where a party fails to perform his work according to the stipulations of his agreement, he cannot recover on the special contract, but if the services rendered by him or the materials furnished are valuable to the other party, and are accepted by such party, he is liable to pay the actual value of the work or materials, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the agreement. Eyerman v. Cemetery Ass'n, 61 Mo. 491.

III. Acceptance as a waiver is not the ground of recovery on a quantum meruit. It is because the work is of value to the proprietor, and if it is no value there can be no recovery. Yeats v. Ballentine, 56 Mo. 538.

PHILIPS, P. J.

I. The sole question here is, is the declaration of law above given correct? The general rule of law respecting such issues is stated as follows by Parsons on Contracts, volume 2, page 522-3, 7th Ed.: “Where parties make a contract which is not apportionable, no part of the consideration can be recovered in an action on the contract, until the whole of that for which the consideration was to be paid is performed. But it must not be inferred from this that a party who has performed a part of his side of a contract, and has failed to perform the residue, is in all cases without remedy. For though he can have no remedy on the contract as originally made, the circumstances may be such that the law will raise a new contract, and give him a remedy on a quantum meruit. * * * The law will imply a promise on his part to remunerate the other party for what he has done at his request; and upon this promise an action may be brought. * * * If the other party has derived a benefit from that part performed, it would be unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonably worth; and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable.”

The correctness of this text has been uniformly recognized by our supreme court. Yeats v....