Dermott v. Jones

CourtUnited States Supreme Court
Writing for the CourtSWAYNE
Citation2 Wall. 1,17 L.Ed. 762,69 U.S. 1
PartiesDERMOTT v. JONES
Decision Date01 December 1864

69 U.S. 1
17 L.Ed. 762
2 Wall. 1
DERMOTT
v.
JONES.
December Term, 1864

JONES, a mason and house-builder, contracted with Miss Dermott to build a house for her, the soil on which the house was to be built being her own. The house was to be built

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according to very detailed plans and specifications, which the 'architect' of Miss Dermott had prepared, and which were made part of the contract. In the contract, Jones covernanted that he would procure and supply all matters requisite for the execution of the work 'in all its parts and details, and for the complete finish and fitting for use and occupation of all the houses and buildings, and the several apartments of the house and buildings, to be erected pursuant to the plan of the work described and specified in the said schedule; and that the work, and the several parts and parcels thereof, shall be executed, finished, and ready for use and occupation, and be delivered over, so finished and ready,' at a day fixed. Jones built the house according to the specifications, except in so far as Miss Dermott had compelled him,—according to his account of things,—to deviate from them. Owing, however, to a latent defect in the soil, the foundation sank, the building became badly cracked, uninhabitable, and so dangerous to passersby, that Miss Dermott was compelled to take it down, to renew the foundation with artificial 'floats,' and to rebuild that part of the structure which had given way. This she did at a large expense. As finished on the artificial foundations the building was perfect.

Jones having sued Miss Dermott, in the Federal Court for the District of Columbia, for the price of building, her counsel asked the court to charge that she was entitled to 'recoup' the amount which it was necessary for her to expend in order to render the cracked part of the house fit for use and occupation according to the plan and specifications; an instruction which the court refused to give. The court considered, apparently, that even under the covenant made by Jones, and above recited, he was not responsible for injury resulting from inherent defects in the ground, the same having been Miss Dermott's own; and judgment went accordingly. Error was taken here. Some other questions were presented in the course of the trial below, and referred to here; as, for example, How far, when a special contract has been made, a plaintiff must sue upon it? how far he may recover in a case where, as was said to have been the fact

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here, the plaintiff had abandoned his work, leaving it unfinished? how far 'acceptance,'—when such acceptance consisted only in a party's treating as her own a house built on her ground,—waives non-fulfilment, there being no bad faith in the matter? and some questions of a kindred kind. The most important question in the case, however, was the refusal of the court to charge, as requested, in regard to the 'recoupment:' and the correctness of that refusal rested upon the effect of Jones's covenant to deliver, fit for use and occupation, in connection with the latent defect of soil upon which the foundation was built.

Messrs. Carlisle and Davidge for the builder: In all cases of locatio operis faciendi, where a workman undertakes to incorporate his work and materials with the property of another, and loss is sustained in consequence of some inherent defect in the property, the loss falls upon the employer. The maxim of res perit domino applies. Pothier, according to Story,1 thus declares the law of France. It is also Scotch law. By it, if the workman is employed in working the materials, or adding his labor to the property of the employer, the risk belongs to the owner of the thing with which the labor is incorporated.2 The employer, by the code of France, is the guarantor of the thing upon which the work and materials of the workman are to be expended: the code of Louisiana adopts the same rule: and the common law is the same. 'If the loss in bad execution,' says Kent,3 'is not properly attributable to the fault or unskilfulness of the undertaker, or those employed by him, but arises from the inherent defect of the thing itself; in such a case the loss is to be borne by the employer, unless there is some agreement by which the risk is taken by the undertaker.'

Undoubtedly the plaintiff might have assumed the extraordinary responsibility alleged; but, unless it be clearly shown that he did so, the presumption is that he contracted

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for no more than the sort and degree of skill and diligence belonging to his trade. His covenant is not the stipulation of an insurer of anything, but is a stipulation to give his own skill, fidelity, and diligence in the prosecution of work undertaken in pursuance of prescribed specifications and plans. Miss Dermott purchased, by the contract, the skill and diligence of Jones, in supplying the work and materials stipulated, and also his judgment, so far as involved in the work and materials. But she never bought his judgment, as regarded the plans and specifications. He was never consulted about them. On the contrary, they were prepared by her architect, and put in his hands to work by. If he deviated from them, he was guilty of a breach of contract, for which he was responsible. His business was to work by, not to override them.

It is thus apparent that the present case is not one where an architect, employed to furnish plans and specifications, is guilty of neglect, and of not exercising that degree of skill and judgment which the employer prays; but is a case where a mechanic is employed to supply work and materials according to plans and specifications which he is bound to follow. The rule of law is that a party is responsible for the ordinary degree of skill belonging to his trade or profession. But Jones was not an engineer or architect, but, as the case states, 'a mason and house-builder.' Nor did Miss Dermott treat with him in any other character than that of a mechanic, competent, not to plan, but to carry out her plans. She employed an architect, by whom the plans and specifications were prepared. Her remedy, then, for any defects in the plans and specifications, was by suit against the architect, not by recoupment against Jones....

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188 practice notes
  • Third Nat. Bank of St. Louis v. St
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1912
    ...where a special contract has been performed, that a plaintiff may recover on the general counts.' So in Dermott v. Jones, 2 Wall. 9 [17 L. Ed. 762], Mr. Justice Swayne says: `While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed accordin......
  • New York Coal Co. v. New Pittsburgh Coal Co.
    • United States
    • United States State Supreme Court of Ohio
    • June 5, 1912
    ...868;Reid v. Alaska Packing Ass'n, 43 Or. 429, 73 Pac. 337;Klauber v. San Diego Street Car Co., 95 Cal. 353, 30 Pac. 555;Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762;[Ohio St. 149]Summers v. Hibbard & Co., 153 Ill. 102, 38 N. E. 899,46 Am. St. Rep. 872;Middlesex Water Co. v. Knappmann, Whiting......
  • McCree & Co. v. State, No. 37316
    • United States
    • Supreme Court of Minnesota (US)
    • August 1, 1958
    ...ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 U.S. 372, 19 S.Ct. 222, 43 L.Ed. 482; Dermott v. Jones, 2 Wall. 1, 17 L.Ed. 762. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be respo......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...to the contract. (Clark v. Smith, 14 Johns. 326; Peoria v. Fruin-Bambrick Co., 169 Ill. 36; Denmead v. Coburn, 15 Md. 29; Dermott v. Jones, 2 Wall. 1; Eckel v. Murphy, 15 Pa. St. 488; Elliott v. Caldwell, 43 Minn. 357; Fogg v. Rapid Trans. Co., 90 Hun, 274; Lumber Co. v. Sahrbacher, 38 P. 6......
  • Request a trial to view additional results
188 cases
  • Third Nat. Bank of St. Louis v. St
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1912
    ...where a special contract has been performed, that a plaintiff may recover on the general counts.' So in Dermott v. Jones, 2 Wall. 9 [17 L. Ed. 762], Mr. Justice Swayne says: `While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed accordin......
  • New York Coal Co. v. New Pittsburgh Coal Co.
    • United States
    • United States State Supreme Court of Ohio
    • June 5, 1912
    ...868;Reid v. Alaska Packing Ass'n, 43 Or. 429, 73 Pac. 337;Klauber v. San Diego Street Car Co., 95 Cal. 353, 30 Pac. 555;Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762;[Ohio St. 149]Summers v. Hibbard & Co., 153 Ill. 102, 38 N. E. 899,46 Am. St. Rep. 872;Middlesex Water Co. v. Knappmann, Whiting......
  • McCree & Co. v. State, No. 37316
    • United States
    • Supreme Court of Minnesota (US)
    • August 1, 1958
    ...ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 U.S. 372, 19 S.Ct. 222, 43 L.Ed. 482; Dermott v. Jones, 2 Wall. 1, 17 L.Ed. 762. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be respo......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...to the contract. (Clark v. Smith, 14 Johns. 326; Peoria v. Fruin-Bambrick Co., 169 Ill. 36; Denmead v. Coburn, 15 Md. 29; Dermott v. Jones, 2 Wall. 1; Eckel v. Murphy, 15 Pa. St. 488; Elliott v. Caldwell, 43 Minn. 357; Fogg v. Rapid Trans. Co., 90 Hun, 274; Lumber Co. v. Sahrbacher, 38 P. 6......
  • Request a trial to view additional results

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