Eakright v. Torrent

• Decision Date: 21 May 1895
• Court: Michigan Supreme Court
• Parties: EAKRIGHT v. TORRENT.

63 N.W. 293

105 Mich. 294

EAKRIGHT v. TORRENT.

Supreme Court of Michigan

May 21, 1895

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Action of quantum meruit by John Eakright against John Torrent for logs sold and delivered to defendant. From a judgment for plaintiff, defendant brings error. Reversed.

Sessions, Niskern & Bassett, for appellant.

Nelson DeLong (John A. McLaughlin, of counsel), for appellee.

MONTGOMERY J.

Defendant was the owner of certain timber in the townships of Muskegon and Dalton, in Muskegon county, and entered into a contract with plaintiff, by the terms of which the plaintiff agreed to cut, haul, and deliver to the defendant, at his mill in the city of Muskegon, all the timber upon the descriptions of land named, at the agreed price of four dollars per thousand feet, payable at stated intervals. The plaintiff offered evidence tending to show that, after about six million feet of the logs were cut, the defendant prevented the completion of the contract by the plaintiff; and this suit is on the quantum meruit, to recover the reasonable value of the work which plaintiff performed under the contract before the defendant interposed to prevent its completion. Among other provisions the contract contained the following: "It is hereby mutually agreed between the parties that the logs mentioned in and covered by this contract, as fast as skidded in the woods, shall be measured or scaled by a competent person or persons, to be agreed upon by the parties hereto, and in accordance with Doyle's rule or scale in use upon Muskegon river. Such scaler or scalers shall, at the time of making such scale, mark each log with such recorded log mark or marks of first party as he shall designate. Each party shall pay one-half of the wages and expenses of such scaler or scalers. The scale of such logs so made shall be final and conclusive as to the quantity of timber cut, hauled, and delivered by said second party under this contract, as far as regards payments to be made therefor. Duplicate scale sheets or bill, if required, shall be made by the scaler, and delivered to each party promptly." The theory of the plaintiff is that as defendant has broken his contract, and failed of performance on his part, the plaintiff is entitled to recover for the work already done on the quantum meruit, and that, in an action to recover on this basis, he is not bound at all by the stipulations of the contract, and may ignore that relating to the conclusiveness of the scale made by the agreed scaler. It is a rule that has been applied in a certain class of cases that if there has been a special contract, and the plaintiff has performed part of it according to its terms, and has been prevented by the act of the defendant from completing it, he may recover upon the quantum meruit the reasonable price of the services already performed. See Hemminger v. Assurance Co., 95 Mich. 357, 54 N.W. 949, and cases cited. But see 3 Am. &amp Eng. Enc. Law, 921, 922; and McGregor v. Ross' Estate, 96 Mich. 103, 55 N.W. 658; 2 Suth. Dam. (3d Ed.) � 713.

The circuit judge charged the jury, not only that if the jury found that a breach was committed by the defendant, by a refusal to permit the plaintiff to continue in a performance of the contract, the plaintiff might recover the reasonable price of the work done, but also charged the jury that in such case the scale of logs already manufactured would not be binding upon the parties. The instruction upon this subject is as follows: "If you find that this contract was violated by defendant, by himself or his superintendent discharging the plaintiff before his work was completed, then I instruct you that no portion of the contract...