Dame v. Woods

• Decision Date: 07 March 1905
• Citation: 60 A. 744,73 N.H. 222
• Parties: DAME v. WOODS.
• Court: New Hampshire Supreme Court

60 A. 744

73 N.H. 222

DAME

v. WOODS.

Supreme Court of New Hampshire. Belknap.

March 7, 1905.

Transferred from Superior Court; Stone, Judge.

Assumpsit for labor and materials by George F. Dame against Horace H. Woods. Facts found, and case transferred from March term, 1904, of the superior court. Case discharged.

The plaintiff contracted with the defendant to put into a tenement house owned by the latter a heating apparatus, consisting of a boiler, radiators, piping, and other appliances and fixtures. The plaintiff was to furnish all the materials and do the work in a thorough and workmanlike manner, and the defendant was to pay the plaintiff the sum of $587.90 upon the completion of all the work. When the plaintiff had affixed to the realty a boiler, radiators, and piping of the value of $466.38, by an expenditure of labor amounting in value to $46.80, the house and its contents were destroyed by fire, without the fault of either party. It was not claimed by the defendant that the materials furnished and the workmanship were not such as were required by the contract, or that the work would not have been completed according to the contract but for the fire. There was no insurance upon the house, boiler, radiators, and piping. The plaintiff bad no key to or control of the house. If, upon the foregoing facts, the plaintiff is entitled to recover, he is to have judgment for $513.18; otherwise there is to be judgment for the defendant for costs.

George B. Cox, for plaintiff. Jewett & Plummer, for defendant.

BINGHAM, J. This proceeding is not an action upon the special contract, but of quasi contract, to recover the benefits, if any, which the plaintiff may have conferred upon the defendant by his part performance of the special contract. A quasi contract exists independently of the intention of the parties, and is founded upon the doctrine of unjust enrichment. Its origin may be in the partial performance of a contract. Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713. And the benefit conferred upon the defendant by the part performance, and not the detriment incurred by the plaintiff, is the basis of liability. Britton v. Turner, supra; Davis v. Barrington, 30 N. H. 517; Allen v. Jarvis, 20 Conn. 38; Wellston Coal Co. v. Company, 57 Ohio St. 182, 48 N. E. 888; Keener, Quasi Cont. 253; 9 Cyc. 689. If there is a liability to pay for a partial performance where it has not been beneficial to the defendant, it does not exist because of any promise which the law would imply, but rests solely on the special contract between the parties. Allen v. Jarvis, supra; Southern Pacific Co. v. Wellworks, 172 Ill. 9, 49 N. E. 575; 9 Cyc. 688; and authorities above cited. The right of one who has partly performed a contract to recover in quasi contract is stated by Woods, C. J., in Davis v. Barrington, supra, at page 527, as follows: "It would seem to be the doctrine in this state * * * that where labor is done and materials found by a person for another upon a special contract, and the contract is not performed according to its terms, that when the services are of a character, and the materials found are furnished under such circumstances, that the same can be rejected. * * * and the obligee can avoid receiving any benefit therefrom, and does not in fact assent expressly or by implication, * * * but refuses to accept the same, the party so performing the labor and furnishing the materials will not be entitled to...