Eaton v. Gladwell

• Decision Date: 24 March 1896
• Citation: 108 Mich. 678,66 N.W. 598
• Court: Michigan Supreme Court
• Parties: EATON ET AL. v. GLADWELL.

66 N.W. 598

108 Mich. 678

EATON ET AL. v. GLADWELL.

Supreme Court of Michigan

March 24, 1896

Error to circuit court, Wayne county; Willard M. Lillibridge Judge.

Action by Joseph W. Eaton and others against Thomas J. Gladwell. There was a judgment for plaintiffs, and defendant brings error. Reversed.

Sylvester Pray (Atkinson & Atkinson, of counsel) for appellant.

M. A Dowling (T. E. Tarsney and W. W. Wicker, of counsel), for appellees.

HOOKER J.

The plaintiffs are builders, and have brought this action to recover for the erection of a building for the defendant. The declaration is upon the common counts, and the record states that, "there being no other or further testimony, the jury were permitted to inspect the building," from which we infer that the substance of all of the testimony is contained in the record. The plaintiffs, in making their case, offered in evidence a written contract under which the work was done, and one of them testified that he "claimed it was completed according to the contract." Testimony was offered showing that it was worth $1,600 to build such a building as that was; but, as the case went to the jury upon a claim that such contract was substantially performed, and there appears to be no evidence that the building was ever accepted by the defendant, the testimony as to value of services was inadmissible. It is only upon the theory that service and materials had been rendered by the plaintiffs, and the benefit appropriated by the defendant, that a recovery could be had upon the quantum meruit, and until the preliminary proof of appropriation was made, or, at least, some claim that the plaintiffs were relying, upon such theory, the testimony of value should not have been admitted. It furnished an opportunity for the thought that the building was worth all that it cost, and a jury would be likely to act upon such argument.

The defendant's claim was that the work and materials did not correspond with those required by the contract, in many particulars. This does not seem to have been seriously disputed, but it was claimed that the defendant waived his right to insist upon compliance. Aside from one or two items this waiver is based upon a statement that, at one time, when the defendant went through the building, "he called attention to some things, and the plaintiff asked him if there was anything else, and told him, if there was, to say so, and he would fix it, and he did not say anything." It was claimed by the defendant, upon the trial, that the rafters were further apart than the specifications permitted; that the roof boards were not dressed to a uniform thickness, it apparently being conceded that they were not dressed at all; the tin was of an inferior quality; the studding was not as specified, either in quality or quantity; one door was omitted, and all doors were 1 1/8 inches thick, instead of 1 1/4; steps were not built at the doors, as specified; one flue was omitted; and the workmanship was poor. A...