Diefenback v. Stark

• Decision Date: 09 January 1883
• Parties: DIEFENBACK v. STARK.
• Court: Wisconsin Supreme Court

56 Wis. 462

14 N.W. 621

DIEFENBACK

v.STARK.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court, Dodge county.F. Hamilton & Son, for respondent, Phillip Diefenback.

James J. Dick, for appellant, William H. Stark.

ORTON, J.

The first count of the complaint is for four months' labor of plaintiff's son, for which the defendant promised to pay $16 per month; and the second count is for four months' labor of the son, which was reasonably worth $16 per month. The answer sets up a special contract by which the plaintiff's son was to work for the defendant six months, at $16 per month, to be paid at the expiration of the six months, and avers the non-performance of the contract by the plaintiff. It appears from the testimony of the plaintiff and the son that the contract was that the son was to work on the farm of the defendant six months from April 1st for $16 per month, and, for the purpose of the case in this court, this must be accepted as the contract, and the whole of it. The defendant and another witness present testified to the contract as stated in the answer. It was also proved that the son worked under this contract for four months only, and then left the service of the defendant solely on the ground that the defendant refused to pay him for such four months, or from month to month. There was evidence offered for the defendant of special damages by reason of the non-fulfillment of the contract on the part of the plaintiff; but as, in our view, the instructions asked, which negatived the right of the plaintiff to recover under the evidence on account of his non-performance of the contract, ought to have been given other questions raised by the exceptions need not be considered. The county court refused to instruct the jury as requested by the defendant's counsel, as follows: (1) That the contract, as stated by the plaintiff and his son, was an entire contract; (2) that, from the evidence in the case, the money due on the contract in question was payable the first day of October; (3) that the action was prematurely brought; (4) that the plaintiff was not entitled to recover; (5) that if you find the plaintiff's boy left of his own accord, without fault of the defendant, the plaintiff cannot recover; (6) that the fact that the defendant did not pay plaintiff's boy money when asked for, was not sufficient reason for the boy to leave.

The point of these requests to instruct the jury was, substantially, that the plaintiff could not recover in this action on the contract, or upon the common count for work and labor, without showing full performance of the contract on his part by the labor of the son for the defendant for the whole six months, unless excused by the act of God or the fault of the defendant, or that the money on the contract was due only at the expiration of that time, upon such performance; or, in other words, that this contract was an entirety, and neither party could recover of the other without full performance on his part, or legal excuse for non-performance. The county court committed, in our opinion, the double error of refusing to give these instructions, and submitting to the jury the question whether the contract was an entire one, or whether the money was due monthly, or at the end of the six months. It was the duty of the court to construe this contract, as testified to by the plaintiff himself, and not leave such a question to the jury. Ramsey v. Higby, 5 Wis. 62;Mowry v. Wood, 12 Wis. 413;Martineau v. Steele, 14 Wis. 272; and numerous other cases which might be cited to swell this opinion, but which need not be, because the decisions are all one way on the question. The contract, according to the testimony of the plaintiff, was an entirety, and no recovery could be had without proof of full performance, or performance excused, and the compensation was to be paid only at the end of the six months, on full performance by the plaintiff, and the court should have so instructed the jury, or have given the instructions asked by the defendant, which imported the same thing, and this presents the real question in the case of this appeal; for the plaintiff, on this evidence and the instructions, obtained a verdict in his favor at the rate of $16 per month for four months, and obtained judgment therefor.

From some general language in the text-books, as well as in some opinions in case of other contracts, it would seem as if this question in respect to contracts for mere work and labor, or for mere personal service, was in conflict. But we have the authority of so able and eminent a jurist as Judge PARSONS for saying that there is really but one case, and that is the one cited in the brief of the learned counsel for the respondent, in which it is held that on a contract for services merely, a recovery can be had upon a quantum meruit for the value of the service already rendered under such a contract, without a full performance. That case is the noted one of Britton v. Turner, 6 N. H. 481. But it seems there were other cases in the same state, and in at least one other state, before that text was written, and there have been cases since in Iowa, and in perhaps some other states, to the same effect. It is safe to say, however, that they are against the current of authority in this country and in England, and certainly against reason. To allow suit in such cases upon a quantum meruit without full performance, and recoupment of damages, would in most cases be quite inadequate to indemnify the employer under the ordinary rule of such damages.

The distinction between such a contract and building contracts, and some others, in which this equitable doctrine has been applied, is very clear and distinct, and rests upon at least plausible reason. In respect to the latter contracts it is said in 1 Story, Cont. § 27: “If, however, a party acting honestly, and with bona fide intention of fulfilling the contract, performs it substantially, but fails in some comparatively slight particular, he is entitled to a fair compensation according to the contract, the other party receiving credit for whatever loss or damages he may have sustained by these variations.” Even beyond this rule, there are other cases, which fall within the class of building contracts, the doctrine of which is as well stated by this court in Taylor v. Williams, 6 Wis. 363, as in any other cases or in any text-books, where the contract was for the construction of a building in a certain manner, and in a certain time, and where the employer accepted and used the building, and thereby virtually admitted that it was some benefit to him, and that the builder was entitled to some compensation therefor, he was allowed to recover a quantum meruit, notwithstanding he had not completed the work fully according to the contract. Without further specifying contracts which fall within this principle, it is sufficient to state the reasons for the distinction between them and a...