Festerman v. Parker

• Decision Date: 31 December 1849
• Citation: 32 N.C. 474,10 Ired. 474
• Court: North Carolina Supreme Court
• Parties: DANIEL FESTERMAN v. LEWIS PARKER.

10 Ired. 474

32 N.C. 474

DANIEL FESTERMAN

v.LEWIS PARKER.

Supreme Court of North Carolina.

December Term, 1849.

The construction of a contract is a matter of law. When committed to writing, the meaning of the terms, when they are explicit, is a question for the Court; but if doubtful and uncertain, they may be submitted to a jury with proper instructions. If the contract is verbal and the parties dispute about the terms, that is a matter of fact for the jury; but if there be no dispute about the terms, and they be precise and explicit, it is for the Court to declare their effect.

If a contract to perform certain stipulated services, for a certain sum, is not rescinded by the mutual consent of the parties, then a promise to pay an additional sum for the same services is without consideration and cannot be enforced.

The case of Massey v. Belisle, 2 Ire. 176, cited and approved.

Appeal from the Superior Court of Law of Anson County, at the Fall Term 1848, his Honor Judge PEARSON presiding.

This was an action of assumpsit. The plaintiff declared specially, and for work and labor done, and materials furnished, goods, wares, and merchandise sold and delivered: and for money paid to the use of the defendant.

The plaintiff proved, that, in the Spring of 1844, he contracted to construct and put into operation a saw mill, in a mill house of the defendant. The plaintiff was to do the work and find all the irons. The defendant, in consideration thereof, was to pay the plaintiff the sum of $100, and to board him and his hands and find the timber. The defendant, at the time of the contract advanced to the plaintiff $20, to buy a saw and other articles, which the plaintiff was to furnish. The $20 was to be a part of the $100.

Shortly after this, and before the plaintiff had commenced the work, the defendant sent word to the plaintiff, by one Kennedy, that he wished to know, why he did not come and begin the work? The plaintiff sent back word to the defendant, that he would not build the mill upon the terms agreed on, that the price was too low. The defendant, thereupon, sent a message to the plaintiff, by Kennedy, “tell him to come and do the work, I will do what is right or pay what is right”--the witness did not recollect which word, “do” or “pay,” was used. The plaintiff soon after went and constructed the saw mill and put it in operation. The plaintiff offered evidence to shew, that the materials furnished by him (viz., the mill irons,) and the work done by him, if done in workmanlike manner, at the usual rates of workmen's charges, was worth $150?? The defendant offered evidence, tending to shew that the work was, in several particulars, defective and insufficient--for instance, that the water??gate was so badly fixed, that a fence rail had to be used to push it up and down, where the water was to be let on or stopped--that the carriage was made to run by ropes instead of having cogs in the usual way--that after trying the mill some time, he got another workman to come and fix it, by putting in a new carriage with cogs, making a new gate, &c., for which he paid $30--that a good deal of the timber was spoiled by the plaintiff, and other timber was got by the second workman.

The defendant proved payments and set offs to the amount of $100.

The Court charged, that upon the first count, on the special contract, the plaintiff could not recover, if the defendant had proved payments and set offs, to the amount of the price agreed upon, viz: $100, supposing the work to have been well done.

Upon the second count, on a promise to pay for the materials furnished and work done, implied from the defendant's having made use of the materials and work, the Court charged, that when work is not done according to contract, although the party cannot recover on the contract, still he may recover for the materials and work: but the amount cannot be greater than the original price, and the rate was, if the materials and work, well done according to contract, be worth $100, how much less is the value of the materials and work as actually done, and the plaintiff would be entitled to recover the amount so ascertained with reference to the original price. So the plaintiff could not recover, if the payment and set offs had been proven to the amount of $100.

Upon the other view presented by the plaintiff's counsel, the Court charged, that, if the original contract had been rescinded by mutual consent, so that neither was any ways bound, and the defendant had promised to do what was right or pay what was right for the materials and work, then the plaintiff would be entitled to recover the value therefor, which he insisted was $150. But the Court was of opinion, there was no evidence to shew that the original contract had been rescinded by mutual consent, so that neither was any ways bound, and another contract substituted as contended by the plaintiff.

On the contrary, the evidence tended to shew, that the plaintiff, having received $20, and being slow to begin the work, because he thought the price too low, the defendant, to induce him to begin, promised to “do and pay what was right,” and if, by this, he was to be understood, as making an additional promise to pay more than the price agreed on, it was not binding for want of a consideration. If a man agrees to do work for me at the price of $100, and, afterwards before he begins the work, I promise to pay an additional sum of $50, if he will do the work, there is no consideration for the latter promise. The jury returned a verdict for the defendant--rule for a new trial for error in the charge refused, and the plaintiff appealed.

Strange, for the plaintiff .

Hargrave, for the defendant .

NASH, J.

In the argument of the case here, the first exception taken by the plaintiff's counsel to the Judge's charge is, that it ought to have been submitted to the jury to decide, whether or not the first contract was rescinded by the parties. His Honor instructed the jury there was no evidence, that the original contract had been rescinded and another substituted. There can be no doubt, but that the construction of a contract is a matter of law. If committed to writing, the meaning of the terms, where they are explicit, is a question for the Court; but if doubtful and uncertain, they may be submitted to the jury, with proper instructions given hypothetically, as the case might be, and in doing so, no error...