Filden v. Besley

• Decision Date: 30 October 1879
• Citation: 3 N.W. 278,42 Mich. 100
• Court: Michigan Supreme Court
• Parties: ALFRED FILDEN and others v. WILLIAM BESLEY.

3 N.W. 278

42 Mich. 100

ALFRED FILDEN and others v. WILLIAM BESLEY.

Supreme Court of Michigan

October 30, 1879

The plaintiff in error entered into an agreement with defendant in error for the construction of an addition to a then existing building connecting and communicating with such building, but at the same time forming an independant structure, price being a gross sum. When said work was nearly complete, but before there had been any acceptance of said building, or any acts from which an acceptance could be implied, or to show that defendant had received a substantial benefit from such erection, the two buildings, old and new were entirely destroyed by fire. Held, that defendant was not liable to plaintiff for the value of the work done prior to the destruction of such buildings.

Error to Clinton.

H. &amp H.E. Walbridge, for plaintiffs in error.

R Strickland and A. Stout, for defendant in error.

MARSTON J.

The controversy in this case arises out of certain materials furnished, and work and labor performed by plaintiffs in error, under an oral agreement to furnish materials and erect an addition to the building in which the defendant resided. This "addition lapped by the old building about eight feet, which was to give room for a door swinging back so it connected with the old building. The sills were mortised into the old building, and pinned, and the sill of the old part formed part of the sill of the new part. Between the old and the new part there was a door cut through, and the door and the lock hung. The old wall formed part of the new." The agreement specified fully how the building should be completed, and the price agreed upon was $250. There was evidence tending to show that the work, labor and materials should not exceed this sum, and that such work and labor were being done by the day. After the work was partly done the house and this addition were destroyed by fire, without the fault of either party, and evidence was given tending to show that the work and labor done, and materials furnished, up to the time of the fire amounted to nearly $200.

The court charged the jury that if the agreement made was to furnish the materials and do the work, and no particular sum was agreed upon therefor, that plaintiffs could recover. If, however, they should find that the materials furnished and labor done were at a certain fixed price for the job, to be paid for when completed, and that it was not completed at the time of the fire, then for the materials furnished and labor performed up to the time of the fire they could not recover. The correctness of this portion of the charge is what our attention has been called to on the matter complained of.

Uuder the strict common-law rule, where a party had failed to comply substantially with an unapportionable agreement, he could not recover for what had been done. This rule has been so far modified that where any thing has been done from which the other party has received a substantial benefit, and which he has appropriated, a recovery may be had based upon such benefit. The basis of this recovery is not the original contract, but a new-implied agreement deducible from the new delivery and acceptance of some...