Little v. Mercer

• Decision Date: 31 January 1845
• Parties: LITTLE v. MERCER.
• Court: Missouri Supreme Court

9 Mo. 218

LITTLE

v.MERCER.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO PLATTE CIRCUIT COURT.

JONES, for Plaintiff. 1. That Mercer, by interfering with the work against the consent of Little, and throwing off the stone from the abutment, where they had been placed by him for the purpose of constructing the work, is such an act of forcible prevention, as discharged him from the performance of the contract. 6 Mo. R. 160, and authorities there cited. 2. That Little was entitled to recover the value of the work done by him on the abutments, on the common counts, Mercer being the cause why the contract was not performed.

LEONARD & BAY, for Defendant. 1. The first, or special count in the plaintiff's declaration, is bad. Debt will not lie for the non-performance of a contract under seal, where the damages are unliquidated. The amount which the plaintiff might be entitled to recover, would depend upon the opinion of a jury, and is entirely uncertain. 1 Chitty Pl. 124, 128, 7th Am. ed.; 1 Saunders on Pl. 404. Covenant was the proper form of action. 1 Chitty Pl. 134. 2. The first count is also bad, because the plaintiff has not declared upon any debt due to him from the defendant; also, because he has not shown any sufficient excuse for not performing his contract. 3. The evidence offered under the common counts was properly rejected: the plaintiff could not waive his agreement, and recover under the common counts for work and labor. Clendennen v. Paulsel, 3 Mo. R. 230; Helm v. Wilson, 4 Mo. R. 41.

NAPTON, J.

That was an action of debt, upon a sealed instrument, to recover the price agreed to be paid to plaintiff, for building the abutment of a bridge. The declaration contained a special count upon the covenant, and the common counts. The covenant between the parties which is set out in the declaration, was about as follows: the plaintiff agreed to put up two abutments, in a style and manner particularly described; the defendant furnishing the materials, stone, lime and sand, and to be finished by the 25th December, 1842; in consideration whereof, the defendant agreed to pay $1700; eleven hundred to be paid on the completion of the work, and six hundred on the first of September, 1843. It was further agreed, that if any change should be determined on by the County Court, or bridge commissioner, the plaintiff was to conform his work to such changes, at a price duly proportioned to the contract price heretofore agreed on.

The first count in the declaration sets forth this agreement in substance, and averred, that an alteration was, on the 4th August 1842, agreed upon between the County Court and the defendant, and that he did, on the 5th August, 1842, commence said work according to the terms of said indenture, and alteration aforesaid, under the direction, and superintendence of the bridge commissioner, and was proceeding to finish and complete the same according to the terms of said indenture and alteration aforesaid, and was then and there ready and willing to do and perform said work, and would have finished and completed the same according to the terms of said indenture and alteration aforesaid, but that he was hindered, delayed and prevented from finishing the same, by said defendant then and there violently, willfully and forcibly throwing down off of, and from the said eastern abutment, a large quantity of stone, to wit: ten perch, into the river, against the consent and will of the said plaintiff, and which stone, said plaintiff had placed at and upon said eastern abutment, for the express purpose of constructing the same, according to the terms of said indenture, &c. Whereby an action accrued to the plaintiff, to demand and have from the defendant, the said sum of $1700: yet the said defendant, though often requested, &c.

To this declaration, the defendant specially demurrea; but at a subsequent term of the court withdrew his demurrer, and filed seven pleas. 1. Non est factum. 2. As to the common counts, nil debet. 3. That plaintiff did not perform and complete the stone work of said abutments, according to the terms of said agreement, nor was he hindered and prevented from so doing by said defendant, as alleged, &c. 4. That plaintiff did not perform a part of said stone work, as by the agreement and alteration he was to do nor was he prevented from doing the remainder thereof, as alleged, on or before the 25th December, 1842, &c. 5. That plaintiff did not put ten perch of stone on the eastern abutment, for the purpose of building the same, and that said defendant did not throw the same down into the river, &c. 6. That said plaintiff did not perform said stone work, nor any part thereof, as he was by said indenture bound to do; but on the contrary was so lazy and negligent, that when said 25th December 1842, arrived, he had not completed one-fourth part thereof, nor was he hindered or delayed by said defendant, &c. 7 Nil debet, generally, to the whole declaration.

Plaintiff took issue on the first, and demurred to the other pleas, setting forth the causes of demurrer specially. Upon this demurrer, the court held the first count of the declaration insufficient and overruled the demurrer of the plaintiff to the second plea, and sustained the demurrer to the seventh plea. No disposition was made of the 3rd, 4th, 5th and 6th pleas. The plaintiff went to trial on the common counts, and offered the sealed agreement, heretofore referred to in evidence, which was excluded. The plaintiff then offered to prove, that he had done work on the abutments worth five hundred dollars, and that defendant had neglected to dig out, and prepare the foundations for the a butments, in time for the plaintiff to finish his work before the 25th December, 1842; and that defendant had prevented plaintiff from completing the said contract, by throwing down one of the abutments, &c. All this testimony the court rejected, and the plaintiff took a non-suit, and moved to set it aside, which motion the court overruled. The plaintiff excepted, and brings his case here by writ of error.

The...