Escott v. White
| Decision Date | 27 March 1873 |
| Citation | 73 Ky. 169 |
| Parties | Escott & Son v. White, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
BODLEY & SIMRALL, For Appellant,
6 Mon 612,Morford v. Mastin.
1 Chitty's Pleading, 349.
3 J. J Marsh. 690,Morford v. Ambrose.
19 Pick. 528, Olmstead v. Beale.
DUPUY & MIDDLETON, For Appellees.
OPINIONPRYOR JUDGE.
The appellees, White & Son, entered into an agreement in writing with the appellants, Escott & Son, by which they undertook to remodel a building in the city of Louisville, owned by the latter, according to the plan and specifications made by the architect, Andrewartha. The price to be paid was four thousand eight hundred and fifty dollars, all of the money to be paid as the work progressed except twenty-five per cent of the amount, and this was to be retained by the appellants for one month after the inspection and acceptance of the work by the architect, with the right of the appellants to apply the same to the payment of any damages that the employers might sustain by reason of the failure of the appellees to comply with their contract. It was further stipulated " that in no event will any work be considered extra under this contract unless the same shall be ordered in writing by the proprietor, indorsed by the architect, and the amount added to this contract in writing."
If the work was delayed, the architect, who was to superintend the work, had the right to employ others to complete it, and deduct the costs from the contract price.
Other clauses are contained in the agreement not necessary to be recited in determining the rights of the parties.
White & Son instituted this action on the agreement in the common pleas court, alleging the performance of the contract on their part, the acceptance of the work by the appellants, and their failure to pay the contract price, having paid them only the sum of $4,092.50. They further allege that at the instance and request of the defendants (appellants) they performed extra work of the value of $______, leaving due the plaintiffs on the original contract and for the extra work the sum of fifteen hundred dollars, for which they ask a judgment.
The appellants file an answer and counter-claim to the petition denying the completion of the work by the appellees, its acceptance by them, and claiming damages of the latter by reason of the delay in the work, the defective materials used, as well as the inferior manner of its execution; also damages by reason of having to employ others to complete the building. They deny the extra work, or that any writing was given authorizing it to be done.
The allegations of this counter-claim are denied by the reply.
The case was transferred by consent to the Louisville Chancery Court, and a judgment rendered in favor of the appellees, of which Escott & Son now complain.
The evidence in the case shows a failure on the part of the appellees to comply with their contract in not completing the building; or if, as insisted by the appellees, the building was completed, their own testimony shows that the work was not executed in the manner required by the terms of the contract.
The chancellor, in his opinion rendered, allows the damages sustained by the failure of the appellees to comply by applying them as a set-off to the claim for extra work. Whether or not this is an equitable adjustment of the claims of these parties is not proper for this court to determine as the case must go back for further preparation or a dismissal of appellees' action.
It is conceded by counsel on each side, in argument, that the action is based upon the contract between the parties; and although it has found its way into a court of equity, it is only a common-law action, containing no allegation of fraud or mistake or prayer for rescission that would enable the chancellor to grant any other relief than as a common-law judge.
It is a well-recognized principle, and too well understood to be discussed, that where a party by the terms of the contract must perform a condition precedent before he is entitled to his money or the consideration for its performance, he can maintain no action on the contract without alleging in his petition, and establishing by proof, if denied, a full performance on his part. " The omission of the averment of performance of a condition precedent, or of an excuse for non-performance, is fatal on demurr...
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