Carter v. Collins.
| Decision Date | 28 May 1928 |
| Docket Number | 27095 1/2 |
| Citation | 151 Miss. 1,117 So. 336 |
| Court | Mississippi Supreme Court |
| Parties | CARTER et al. v. COLLINS. [*] |
1. TRIAL. Permitting defendant to reopen case and make proof of recoupment not authorized by pleadings held error (Hemingway's Code 1927, sections 541, 2587).
In suit to enforce materialman's lien in which defendant pleaded general issue and failure on plaintiff's part to comply with contract in that contract of guaranty of roofing had not been furnished, permitting defendant to reopen case and make proof of recoupment by way of damages in cost of repair to building caused by leakage of roof held error, under Code 1906, section 3065 (Hemingway's Code 1927, section 2587) providing that parties shall be confined at trial to cause of action and defense set forth in pleadings, which makes it mandatory that defendant set up in answer or pleading all defenses relied on and also counterclaim, and under Code 1906, section 744 (Hemingway's Code 1927, section 541) relating to setting out affirmative matter in avoidance of cause of action in writing.
2. EVIDENCE. Where language of roofing contract was "ten-year guarantee from J. M. Company," parol evidence was admissible to explain guaranty.
In action to enforce materialman's lien in which defendant claimed plaintiff failed to comply with contract in that roofing contract called for "ten-year guarantee from J.-M. Company," and that contract of guaranty had not been furnished, permitting defendant to testify as to what was meant by such contract of guaranty held not error, since parol evidence which did not vary or contradict terms of contract could be resorted to in order to effectuate written contract and language quoted clearly pointed to another document setting forth guaranty.
3 PLEADINGS. Plaintiff suing on special contract in one count and on quantum meruit in another cannot recover on both or on admixture of both.
Where plaintiff sues on special contract in one count and on quantum meruit in another count, he must stand on one count or the other and cannot be permitted to recover on both or on an admixture of both.
4. CONTRACTS. Parties cannot abandon contract and resort to quantum meruit.
Where there is a contract, parties may not abandon same and resort to quantum meruit.
APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.
Suit by W. M. and M. A. Carter against Jeff Collins to enforce a materialman's lien. From the judgment, both parties appeal. Reversed and remanded on direct and cross-appeals.
Reversed and remanded on direct and cross-appeals.
W. S. Welch, Ellis B. Cooper, Roy P. Noble, and James T. Welch, for appellants.
B. F. Carter, F. B. Collins, and Jeff Collins, for appellee.
W. M. and M. A. Carter, plaintiffs in the court below and appellants here, filed their suit in the circuit court of Jones county, to enforce a materialmen's lien on the house and lot of the defendant, Jeff Collins, appellee and cross-appellant in this court, for the sum of three hundred ninety-four dollars and sixty-six cents. The declaration was in two counts. The first count was based on a letter written by the appellants to the appellee, Collins, offering to furnish material for a roof upon his dwelling and the labor necessary to put same on for the sum mentioned above, upon which the appellee, Collins, wrote the word, "Accepted," and signed his name. The second count, or common count, sought to enforce the lien for the value of the roof and labor necessary to put it on. The first count alleged that the contract had been fully complied with, and the second, or common count, that the material and labor had been furnished, and so furnished was worth three hundred ninety-four dollars and sixty-six cents. The letter, or written contract, is as follows:
The appellee, Collins, filed an answer to the declaration, pleading the general issue and a failure on the part of the appellant to comply with his contract in that the contract called for a "ten-year guarantee from Johns-Manville Company" and such contract of guaranty had not been furnished in accordance with the agreement, and that there was an antecedent oral agreement to furnish a contract guaranteeing a waterproof roof that would not leak for a period of ten years. In the answer filed, there was no counterclaim set off, or recoupment set up, as a defense to the action, and there was no claim for damages to the house occasioned by leakage.
Plaintiff, in the court below, offered evidence that he had furnished a roof of the character and quality of material called for in the written contract, with a written guaranty executed by Johns-Manville Company and himself. The written guaranty was tendered to the appellee and payment demanded, which demand was refused because the appellee, Collins, contended that the written guaranty did not provide a guaranty that the roof would be waterproof for a period of ten years. The Johns-Manville Company's guaranty stipulated that it would furnish, free of charge, such new material as might be necessary to remedy defects caused by the failure of their material. The appellant, Carter, testified that the written guaranty was the one usually issued by the Johns-Manville Company, while the appellee, Collins, testified that the guaranty was not the one which the appellant, agreed to furnish him, but there was to be an absolute guaranty that the roof would not leak for a period of ten years; and he signified his willingness to pay the contract price on the execution of the guaranty in the form for which he contended.
Appellee further testified that the appellants, the Carters, would not furnish the material unless they were allowed to put the roof on; and that for that reason he had to pay his contractor three dollars per square foot for putting the roof on in accordance with the building contract; and that in order to get the ten-year guaranty against leakage, he also had to pay the appellants, the Carters, for the same, three dollars per square foot, for putting the roof on.
White, the building contractor, testified that the appellee, Collins, deducted one dollar fifty cents per square foot from the building contract; so according to the appellee's theory, he paid more than sixty dollars for the guaranty, while according to White's testimony, he paid considerably less, or about thirty-six dollars for the guaranty.
After both sides had rested, and while the court was deliberating on the instructions, the appellee, Collins, asked to reopen the case and was permitted to do so over the objection of the plaintiffs, and also to offer proof of a recoupment consisting of the cost of repairs to the walls of his building, such as lathes, plasterings, painting, etc., caused by leaks in the roof which roof was repaired by the plaintiffs several times because of such leaks. This damage was estimated by the appellee's witness to be from one hundred twenty-five to one hundred fifty dollars.
The appellee, Collins, did not offer to show what damage, if any, there was to the building, but only to show the cost of the repair of damage to the walls of the building.
The appellants, the Carters, objected to all the oral testimony given by the appellee, Collins, with reference to the guaranty, maintaining that the contract was in writing and could not be contradicted, altered, or varied by oral evidence.
When the court below permitted the appellee, Collins, to reopen his case, there was no amendment to his answer asked for, and none made, and no plea of recoupment or notice of recoupment, or any such defense, contained in the answer. The court below granted an instruction to the appellant, directing a recovery on the second count on quantum meruit and quantum valebat for value of labor and material furnished, but in the same instruction used the words "contract price" as the basis of recovery, "subject to such damages capable of being estimated in dollars and cents as shown by the testimony to be deducted from the contract price unless the defendant had shown by a clear preponderance of testimony that there was no compliance with the contract by the plaintiffs." The court refused the peremptory instructions separately asked by the appellee, Collins, as to the first and second counts, and the case was submitted to the jury on the question of whether or not the appellee, Collins, had suffered damages by reason of plaintiff's failure to comply with the contract with respect to the leakage of the roof.
We have not set out the instructions, but only an analysis of the issues as reflected by them.
The appellants, the plaintiffs, filed their suit and demanded a lien in accordance with section 2584, Hemingway's 1927 Code (section 3062, Code 1906). The appellee, the defendant, filed an answer to the petition by virtue of section 2587, Hemingway's 1927 Code (section 3065, Code 1906), which section is as follows:
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