Eckel v. Murphey
| Decision Date | 15 April 1851 |
| Citation | 15 Pa. 488 |
| Parties | Eckel <I>versus</I> Murphey |
| Court | Pennsylvania Supreme Court |
The case was argued by Campbell and Bannan, for plaintiff in error.—The admission of the evidence relative to the credit of defendant was erroneous. The loss of credit was not a legitimate subject of damage. The agreement was entered into on the 7th January, 1848, and the note bears date 8th April, 1848. It is an independent obligation for coal delivered, or to be delivered, under the agreement, and coal was delivered, though not to the full amount of the note. The court erred in likening this case to the cases in 10 Ser. & R. 235; and 1 W. & Ser. 301. Those cases decide that where work is done under a special agreement, the plaintiff must show performance before he can recover on a count on a general indebitatus assumpsit. Where the services are not rendered, the law does not imply a promise to pay, and indebitatus assumpsit will not lie; and to recover on a special agreement, the plaintiff must count upon it. But here the suit is upon the note, which carries with it a legal obligation to pay; and though the defendant may defalk his damages from the amount of the note, the plaintiff can recover on it the balance due to him, without alleging and proving performance of the special agreement. The amount of damages should have been referred to the jury.
Hughes, for defendant.—It was contended that the court was not wrong in the distinction made between a suit on the note and a suit on the special agreement. Both the counts for the note and for goods sold and delivered, were in affirmance of the contract. The plaintiff's declaration gave no notice of any pretended legal excuse for non-performance, and the defendant, knowing of the non-performance, could not possibly be advised in such a suit that he was to meet any such issue as the allegation of a legal excuse. Such allegations may be various in their character, and to subject a defendant to the necessity of meeting them without forewarning him by the pleadings, or any notice known to the rules of practice, might do great injustice. But whether the court were right or wrong in this distinction, under the undisputed facts of this case it could not vary the result.
It must be impossibility, not difficulty, that will excuse a party from the performance of a contract: Huling v. Craig, Add. 342. The difficulty or unprofitableness of making the Tunnel Colliery was not a valid excuse for Eckel stopping the sending of coal to Murphey: 1 Peters' C. C. Rep. 85; 3 Wash. C. C. Rep. 184; 1 Peters 221. A party to a contract acting in violation of his agreement, forfeits his right to the consideration, which is entire, when, from the nature of the contract, the extent of the damages resulting from his conduct are not capable of proof: 1 Harris 242. He must show performance, or that it was prevented by defendant: 2 Pa. Rep. 454; 8 W. & Ser. 369; 1 W. & Ser. 301; 5 W. & Ser. 382; 7 Barr 387; 2 East 145; 10 Ser. & R. 235; 3 Ser. & R. 505; 1 W. & Ser. 301.
The opinion of the court was delivered April 15, 1851, by BELL, J.
The instruction given to the jury below, that the plaintiff could not recover without showing a complete performance on his part of the written agreement of January 1848, is professedly founded on the doctrine declared in Algeo v. Algeo, 10 Ser. & R. 235, and Harris v. Liggett, 1 W. & Ser. 301. But in the hurry almost necessarily attendant upon a trial at bar, the court overlooked a very important feature of the present controversy, broadly distinguishing it from the authorities cited. In those cases, the somewhat anomalous rule was recognised, that where a party had fully discharged the stipulations of a written contract for services to be rendered, he may recover in indebitatus assumpsit, using the written agreement as evidence; but where his performance is incomplete, he is driven to his action upon the contract itself, with averments excusing his non-performance. The reason given is, that full performance of a contract creates a moral duty to compensate it, independently of the obligation of the contract itself, while a deficient performance gives birth to no corresponding liability. Or, in other words, from the complete discharge of such a covenant springs an implied undertaking to pay for the benefits conferred, but the law will infer no such promise from half performance. In the latter case, the difficulty in sustaining the common count for work and labor is found in the absence of a consideration adequate to raise a promise, and, consequently, the very foundation of indebitatus assumpsit is wanting. But no such obstacle lies in the way of the present plainti...
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In re Jackson
...286 F.Supp. 899, 904 (W.D.Pa.1968); Smith v. Western Union Telegraph Company, Inc., 150 Pa. 561, 24 A. 1049 (1892); and Eckel v. Murphey, 15 Pa. 488, 495 (1850). ...
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Mellon Bank, NA v. Aetna Business Credit
...aff'd 495 F.2d 1386 (3d Cir. 1974); Smith v. Western Union Telegraph Co., 150 Pa. 561, 564, 24 A. 1049 (1892); Eckel v. Murphy, 15 Pa. 488, 495 (1850); Altoona Clay Products Co. v. Dun & Bradstreet, Inc., 286 F.Supp. 899, 904 (W.D.Pa.1968). To collect damages other than nominal due to a los......