Bye v. George W. McCaulley And Son Co.

• Decision Date: 22 June 1908
• Citation: 23 Del. 115,76 A. 621
• Court: Delaware Superior Court
• Parties: ELMER T. BYE and GRACE BYE, d. b. a., v. GEORGE W. MCCAULLEY AND SON CO., a corporation of the State of Delaware, p. b. r

76 A. 621

23 Del. 115

ELMER T. BYE and GRACE BYE, d. b. a., v. GEORGE W. MCCAULLEY AND SON CO., a corporation of the State of Delaware, p. b. r

Superior Court of Delaware, New Castle County

June 22, 1908

Superior Court, New Castle County, May Term, 1908.

APPEAL from a judgment rendered by a Justice of the Peace in and for New Castle County (No. 154, February Term, 1907).

Action by the plaintiff to recover from the defendants the sum of $ 189.28, with interest from August 20th, 1906, for work and labor in constructing a certain porch and steps for the defendants' home, at Holly Oak, in New Castle County. Said work was claimed to have been done between June first and June twenty-seventh, 1906, under a contract that the defendants were to furnish all materials and plaintiff to furnish the necessary labor to do the work. The house in question was occupied by the defendants after the porch and steps were completed. Payment therefor was resisted by the defendants on the alleged ground that the porch and steps were unsatisfactory because of bad and unskillful workmanship, whereby the top dressing cracked and separated from its bedding. Defendants' counsel asked the Court to charge the jury as follows:

"The law, however, does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver or acceptance, nor does it deny to him the right so to occupy and still insist upon the contract. The owner from the nature and necessity of the case takes the benefit of part performance, and therefore by merely so doing does not necessarily waive anything contained in the contract. To impute to him a voluntary waiver of conditions precedent from the mere use and occupation of the building erected unattended by other circumstances, is unreasonable and illogical, because he is not in a situation to elect whether he will or will not accept the benefit of an imperfect performance. To be able to stand upon the contract he cannot be reasonably required to tear down and destroy the edifice if he prefers it to remain. As the erection is his by annexation to the soil, he may suffer it to stand, and there is no rule of law against his using it without prejudice to his rights.

" Smith vs. Brady, 17 N.Y. 189; U.S. vs. Walsh, 115 F 697 (703); Bozarth vs. Dudley, 44 N. J. L. 304; Gillis vs. Coke, 177 Mass. 584; Gray vs. James, 128 Mass. 110; Spence vs. Ham, 50 N.Y.S. 960; Hagerstown etc. Co. vs. Stone Co., 66 Md. 598 (8 A. 752.)."

Verdict for plaintiff for $ 210.09.

Marvel and Marvel, and Hugh M. Morris for appellants.

Wm. T. Lynam for respondent.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J., charging the jury:

Gentlemen of the jury:--The plaintiff is seeking to recover from the defendants the sum of $ 189.28, with interest from August 20th, 1906, for work and labor in constructing a certain porch and steps for the defendants' home, at Holly Oak, in this county.

It is claimed that the said work was done between June 1st and June 27th, 1906, under a contract that the defendants were to furnish all the materials and the plaintiff to furnish the necessary labor to do the work.

Where a person holds himself out as a competent contractor to perform labor of a certain kind, the law presumes that he possesses the requisite skill to perform such labor in a proper manner, and implies as a part of his contract that the work shall be done in a skillful and workmanlike manner.

It is conceded that the porch and steps when completed were not satisfactory; that the top dressing cracked and separated from its bedding. The plaintiff claims that the defects therein resulted from the unsuitable material furnished by the defendants; to wit, a certain Cedar Hollow limestone with which the plaintiff was not familiar, and from no fault of the...