Byerly v. Kepley

• Decision Date: 31 December 1853
• Parties: JACOB BYERLY v. DAVID KEPLEY ET AL.
• Court: North Carolina Supreme Court

1 Jones (NC) 35

46 N.C. 35

JACOB BYERLY

v.DAVID KEPLEY ET AL.

Supreme Court of North Carolina.

December Term, 1853.

When A agreed to build for B a good saw-mill, B undertaking to cut the mill race, and the mill was worthless, in consequence of a defect in the race below; and, when it appeared that A had undertaken to ascertain the level, and designate the position of the race, and had done it so unskillfully as to produce the defect in question, HELD, that A had a reasonable time to have the error corrected, and he had a right to have such correction made, provided he could show that, as proposed by him, it would remedy the defect.

To recover on the common counts for materials furnished, and work and labor done, it must be shown, that the article was received or used by the defendant, or was in some way beneficial to him.

ACTION of ASSUMPSIT, tried before his Honor Judge SAUNDERS, at Fall Term, 1853, of Davidson Superior Court.

The plaintiff declared on a special contract, and upon the count for work and labor done, &c. The case was, the plaintiff agreed “to build for the defendant a good saw-mill, to find the irons, and to do all the mechanical work, and the defendant to cut the mill-race.” The plaintiff took the level of the ground and marked out the position for the mill-race, which was cut by the defendant according to his designation. The race averaged about two feet wide. The frame of the mill was placed partly on a rock and partly on the ground, and propped up with small poles. The plaintiff was not a millwright by trade, but expressed confidence in his ability to build as good a mill as any one, and, to get an opportunity of exhibiting his skill, agreed to undertake this mill below the usual rates. When the work was finished, and the mill started, it made only a few strokes, when it stopped, in consequence of the water flowing back upon the wheel. Plaintiff said that the wheel was too low, and the race too narrow. Shortly after this, the plaintiff applied to the defendant to have the race cut wider, to which he made no reply. About eighteen months afterwards, he again applied to the defendant to have the race cut wider, to which he replied, that “the plaintiff had marked out the race, and directed how it was to be cut, and if not properly done, the fault was his, and as he had been told the work was worth nothing, he should do nothing more with it.” In regard to the quality of the work, the evidence was contradictory. Some time after the work was done, the mill frame on one side sunk several feet. Whether there was any fall in the race, was, also, the subject of contradictory evidence.

His Honor charged the jury, that, according to the agreement, the plaintiff was bound to do the necessary work for a good saw-mill, and the defendant to cut a proper mill-race. But, as the plaintiff had undertaken to mark out the race, and to direct its cutting, if not properly done, the fault was his. Yet, as no time had been named for finishing the work, the law allowed a reasonable time, and, if the plaintiff had committed any error in the first place, he had a right to correct it; and, if the jury believed he had applied to the defendant, in a reasonable time, to widen the race, and he failed to do it, the fault must be on the defendant: That eighteen months would be too late; but the first notice, if made, was in reasonable time. As to the foundation, whether a single or double pillar, as plaintiff had undertaken to secure the frame, he was bound to have done it in a proper way. As to the quality of the work, that was a question for the jury. If they should find the work well done, and such as would have ensured a good saw-mill, the plaintiff would be...