Coe v. Smith

• Decision Date: 24 May 1853
• Citation: 4 Ind. 79
• Parties: Coe v. Smith, Administrator
• Court: Indiana Supreme Court

4 Ind. 79

Coe v. Smith, Administrator

Supreme Court of Indiana

May 24, 1853

ERROR to the Marion Circuit Court.

The judgment is affirmed, with 10 per cent. damages and costs.

H. C Newcomb, for the plaintiff.

H O'Neal, for the defendant.

OPINION

Perkins J.

Assumpsit by Smith, administrator of Sweetser, against Coe, for work and labor, &c., performed for the latter by Sweetser, in his lifetime. The cause was tried by the Court upon the general issue, and a judgment was rendered for the plaintiff for 175 dollars.

Three special pleas were filed by the defendant and set aside by the Court on the motion of the plaintiff; but they raised no point in the defence of which the defendant could not have availed himself under the general issue, and the action of the Court in reference to them was, consequently, immaterial.

The facts in the case, shortly stated, are, that Coe employed Sweetser, a lawyer, to defend a suit at law for him, agreeing to pay him for so doing, 500 dollars. Sweetser labored in the defence for a time, but died before the suit was determined, and Coe employed another lawyer to continue the defence. This suit is by Sweetser's administrator against Coe, not upon the contract, but upon the quantum meruit, to recover from Coe the amount that Sweetser's services were worth to him. It is contended that the suit cannot be sustained because the contract for the service was entire, and the service has not been fully performed. There are numerous authorities that sustain this position. They decide that in the case of an entire contract, there can be no division or apportionment. Cutter v. Powell, in which the administrator of a sailor, who had contracted to perform a voyage for a certain sum, and died before its termination, was denied the right of recovering anything for the part performed, may be regarded as a leading case. Kent, vol. 3, p. 471, note, says, at common law, "if a servant was hired for the month or year, and the service ceased within the time, there was no apportionment of wages for the actual time of service, though the rule operated in some cases most unjustly."

In some courts, however, this doctrine seems to have been doubted, if not denied. Kent, to the observation above quoted, adds: "The old rule is now held to be relaxed, and wages, it is understood, may be apportioned, upon the principle that such is the reasonable construction of the contract of hiring. Lawrence J., 6 Term. R. 326. M'Clure v. Pyatt, 4 McCord 26.--Bacot v. Parnell, 2 Bailey S. C. R. 424." And Judge Story, in Brooks v. Byam, et al., 2 Story's R. 525, decided in 1843, seems to think the maritime law should have been applied to give a different decision in Cutter v. Powell. He says, "The case of Cutter v. Powell, (6 Term. R 320) is directly in point, although I entertain considerable doubt whether, by the maritime law, the contract in that case was not divisible."

But the present suit is not upon the special contract, and does not seek to recover the sum stipulated in it, or any apportionment of it, but is upon a common count in assumpsit, for the purpose of recovering from Coe the reasonable worth of Sweetser's services to him, and rests on the principle, as laid down by Judge Dewey in Lomax v. Bailey, 7 Blackf. 599, "that where one party to a special entire contract has not complied with its terms, but professing to act under it, has done for or delivered to the other party something of value to him, which he has accepted, no action will lie on that contract for the work done or thing delivered; but that the party who has been thus benefited by the labor or property of the other, shall be responsible on an implied promise arising from the circumstances, to the extent of the value received by him."

This principle received the sanction of this Court in the case quoted from, in Milnes v. Vanhorn, 8 Blackf. 198, and in McKinney v. Springer, ^[1] Epperley v. Bailey, ^[2] and Manville v. McCoy, ^[3] November Term, 1851, and we adhere to the decisions in those cases. In Fenton v. Clark, 11 Vt. 557, it is decided that where A. contracted with B. to labor for him four months from a given day, at 10 dollars per month, and to receive no pay until he had worked the four months, and was prevented from completing the four months' labor by reason of sickness, he might recover upon a quantum meruit, for the services performed; and the case of Britton v. Turner, 6 N.H. 481, is cited with approbation. This decision the Supreme Court of Vermont reaffirms in Seaver v. Morse, 20 Vt. 620.

But it is urged in this case, that the doctrine laid down in Lomax v. Bailey can only be applied in cases where the benefited party, on the breach of the contract, wrongfully fails to restore to the other party what has been received under it, and thus to place him in statu quo, and that there can be no such wrongful failure in contracts for personal services, because the parties, in such cases, cannot be placed in statu quo; but the authorities will not justify such an idea for it is...