Clark v. Till

• Decision Date: 01 February 1937
• Docket Number: 32553
• Citation: 177 Miss. 891,172 So. 133
• Court: Mississippi Supreme Court
• Parties: CLARK v. TILL

172 So. 133

177 Miss. 891

CLARK v. TILL

No. 32553

Supreme Court of Mississippi

February 1, 1937

Division B

Suggestion Of Error Overruled March 1, 1937.

APPEAL from circuit court of Jefferson county HON. R. E. BENNETT Judge.

Suit by O. T. Clark, trading as the Clark Roofing Company, against Charles A. Till. From a judgment in favor of the defendant the plaintiff appeals. Affirmed.

Affirmed.

Harold Cox and Aubrey Fulton, both of Jackson, for appellant.

The lower court erred in sustaining appellee's motion to require the appellant to elect to proceed either on the first or second count of his declaration.

Sections 553 and 569, Code of 1930; Aetna Ins. Co. v. Commander, 153 So. 877, 169 Miss. 847; Wellford & Withers v. Arnold, 140 So. 220, 162 Miss. 786.

It is submitted the declaration was not duplicitous, and that the two counts thereof in the instant case under such circumstances were not inconsistent, and that the court erred in sustaining appellee's motion to require the appellant to elect between said counts.

The lower court erred in admitting any evidence of how appellant may and should have insured the property being repaired, and erred in refusing appellant's peremptory instructions.

It is the policy of the law to favor the contractor who engages to do certain repair work on an existing building for the owner, where the building is destroyed without fault of the contractor before the completion of such repairs. That is the situation in the instant case.

An inquiry which often arises in such a case is whether the contract is entire and indivisible, or divisible and separable. In 6 R. C. L., section 246, page 858, "The singleness or apportionability of the consideration appears, however, to be the principal test." In effect, the appellee requested the appellant to furnish him with the separate cost of three separate items of repair to this building. Whereupon, the appellant offered to do three separate items of repair on said building at a stated price for each item. The several items of the proposal were severally fixed, modified and changed as items in reaching the total cost. The total so-called contract price was the sum total of the added costs of the several items of repair.

The appellee admitted that before the acceptance of said offer of the appellant to do said work, that he did not have in mind having him do all of such three items of repair to said building. He might have accepted the first two proposals of the appellant and rejected the last. He might have accepted the last and rejected the first and second, or first proposal of the appellant to make such repairs, either or any item of which the appellant would have done for the stated price.

Wright v. Petrie, S. & M. Ch. 282, p. 108; Whitfield v. Zellnor, 24 Miss. 663; Ramsay v. Brown, 25 So. 151, 77 Miss. 124.

One of the most certain of the single tests for determining the intention of the parties is whether the consideration on the one side is apportioned to each of the different covenants on the other, or whether the consideration on the side is the entire consideration for all the covenants upon the other side. If the consideration agreed upon for each covenant is apportioned to each covenant separately, the contract is prima facie severable.

4 Page on Contracts, page 3611, sec. 2088, and page 3616, sec. 2089; Bullard v. Citizens Nat. Bank, 160 So. 280, 173 Miss. 450; 6 R. C. L. 978, sec. 348.

Appellant did not breach his contract when the subject matter of the contract was destroyed by fire without his fault prior to the completion of the roof thereon.

A. L. I., Restatement, Contracts, sec. 460 (10), page 864, and sec. 464, page 873.

It is a policy of the law to avoid forfeitures and to so construe the contract as to afford one who has partially performed a contract, where the full performance is rendered absolutely impossible, some remuneration for his services rendered.

A. L. I., Restatement, Contracts, sec. 468, and page 627, sec. 357; Gulf & S. I. R. R. Co. v. Horn, 100 So. 381, 135 Miss. 804.

Where the contract is not entire and the work is destroyed when partly completed, the builder has been held entitled to recover the installments due at the time of the destruction of the work, or the pro rata value of the material and work, as the evidence should show the contract to be, and it has also been held that he is not required to rebuild the structure.

9 C. J. 807, sec. 145 (b).

The trend of the decisions and policy of our court in such case is announced in Hickory Investment Co. v. Wright Lbr. Co., 119 So. 308, 152 Miss. 825; U. S. F. & G. v. Parsons, 53 A.L.R. 122.

The rule that a party who has failed fully to perform his contract cannot recover for part performance applies only to entire, and not to severable contracts, which are, in legal effect, independent agreements about different subjects although made at the same time. There may be a recovery for a part performance of a divisible contract.

6 R. C. L. 983, sec. 351.

The appellant has not breached his contract, even if it were entire and indivisible because it was contemplated by both parties that the building would be and remain in existence until the completion of such repairs thereto.

Selected Readings on the Law of Contracts, by Mr. Justice Benjamin Cardozo, pages 950-52; 6 R. C. L., page 1007, sec. 370, and page 980, sec. 349, and pages 981-83, sec. 350.

Where the contract is for the performance of work on an existing structure which must continue to exist in order that the work may be performed, and such structure is not wholly under the control of the builder, as where repairs or alterations are to be made on a building, or where the contract is for the construction of a particular part of a house, the agreement is on the implied condition that the structure on which the work is to be done shall continue in existence and if the structure is destroyed, without fault of the builder before the work is completed, he is excused from further performance, and not only is the owner precluded from recovering partial payments made to the builder as the work progressed, but it also seems to be the well settled rule that in the absence of any provision in the contract to the contrary the builder may recover on a quantum recruit for the value of his labor and materials expended in the partial performance of the work, unless there is a statutory provision to the contrary.

9 C. J. 807, sec. 146 (2).

An exhaustive search has been made for authorities dealing with the question involved in the instant case. Frankness impels an admission that the courts of last resort of four states in the American Union support the theory of the appellee which was followed by the lower court. Where the question in the case at bar has been presented to any other of the courts of last resort in the American Union, so far as a diligent examination has disclosed, such coups have held that the contractor was entitled to recover on a contract without regard to whether the contract was divisible or entire, where the subject matter of the contract undergoing repairs was destroyed. Without unduly extending this brief, some of these authorities will be presented for the court's consideration.

Cleary v. Sohier, 120 Mass. 210; Steamboat Co. v. Transportation Co., 82 S.E. 956; Dame v. Wood, 70 A. 1081; Waldheim v. Englewood Hgts. Estates, 179 A. 19; Bell-Burke Oil Co. v. O'Neil, 242 S.W. 251; Ganong & Chenoweth v. Brown, 88 Miss. 53, 40 So. 556; Angus v. Scully, 57 N.E. 674; Robb v. Parten, 226 N.W. 515; Acme Plumbing & Heating Co. v. Hirsch, 236 N.W. 137; Carroll v. Boyersock, 164 P. 143; U. S. F. & G. v. Parsons, 53 A.L.R. 127.

Truly & Truly, of Fayette, for appellee.

If appellant was entitled to recover in this case, he was entitled to recover either on the express contract, set out in the first count, or on the quantum meruit, set out in the second count.

Carter v. Collins, 117 So. 336; Drake v. Surget, 36 Miss. 458; 1 Str. Bull. N. P. 139, 6 Term. R. 325; Gilchrist & Fordney Co. v. Parker, 69 So. 290.

From all the evidence we believe it is inescapable that the contract is entire and indivisible. There is not one scintilla of evidence in the record, not a single circumstance, from which it can be logically concluded that the contract is divisible. Being an entire contract, the case of Ganong & Chenoweth v. Brown, 40 So. 556, has no applicability. Counsel may argue that the insurance feature in the two cases bring them together. This contention, if urged, will not bear close analysis.

There can be no recovery on this record because the contract is entire and was not fully performed. The only matter we are now really concerned with is the case as it was presented. What might have been the appellant's rights if his counsel had elected to proceed on quantum recruit is not before the court on this appeal. There is respectable authority to the effect, if the matter had been so presented, that appellant would have been entitled to some recovery if the trial had proceeded on the quantum meruit count. The choice of proceeding on this count was offered to appellant by the lower court and he declined to do so. It is useless, therefore, to speculate on what he might or might not have been entitled to if the case had been presented on that count. We desire, however, to call this court's attention to the fact that if the suit had proceeded on the quantum meruit count, different evidence would have been admissible on both sides, a different defense would have been interposed, and a different measure of recovery would have been applicable. In such case the recovery would not have been the amount expended by appellant, but the increase in the marketable and insurable value of...