Fitzgerald v. La Porte

• Court: Arkansas Supreme Court
• Writing for the Court: RIDDICK, J.
• Citation: Fitzgerald v. La Porte, 40 S.W. 261, 64 Ark. 34 (Ark. 1897)
• Decision Date: 17 April 1897
• Parties: FITZGERALD v. LA PORTE

40 S.W. 261

64 Ark. 34

FITZGERALD v. LA PORTE

Supreme Court of Arkansas

April 17, 1897

Appeal from Pulaski Circuit Court, Second Division JOSEPH W. MARTIN Judge.

STATEMENT BY THE COURT.

This action was brought in a justice's court by appellee William La Porte, against Edward Fitzgerald and J. F Callaghan, to recover a balance claimed to be due for work and labor performed under contract. La Porte agreed with the appellants to lay the tiling and do the marble work in St Andrews' Cathedral, at Little Rock, for a price named, the work to be performed in a "good and workmanlike manner." The defense to the claim was that the work was not done in accordance with the contract.

On the trial, plaintiff testified that the work was performed in a skillful and workmanlike manner. "There may be," he said, "some slight defects in the work, but they are such as cannot be avoided, and will be found in the best jobs." He also introduced other evidence tending to show that the work was done skillfully and in accordance with the contract. The defendants introduced testimony tending to show that in 1891 the interior of the cathedral was being finished and fixed up in a very elegant and expensive style; that La Porte bid for the tile and marble work; that, before his bid was accepted, he was notified that "nice work" was desired, He replied that he was competent to do the work, and upon that assurance his bid was accepted. The defendants introduced further testimony tending to show that La Porte did not comply with his contract; that the tiling was laid unevenly with crooked lines and bad joints. There was also testimony tending to show that the tiling which plaintiff contracted to lay was made to be laid in accordance with a pattern, and that the pattern was a rather difficult one to lay properly; that there was no one in Little Rock capable of doing the work in a first-class manner; that La Porte was as good as the average tile layer of Little Rock, but that he did not possess the skill required of those who followed such work in larger cities where there was more demand for skillful work; that there was no great demand for such work here, and no one possessed of great skill in such work.

The presiding judge instructed the jury in part as follows: "This is a suit based on a written contract, as follows: 'I will do the setting of the tiling at the Catholic Church, furnishing all material except tiling and carpenter work, for 85 cents per square foot, in a good and workmanlike manner.' The words, 'in a good and workmanlike manner,' are to be construed in their usual and ordinary acceptance among skilled workmen in the community where the contract is made and to be performed, considering all the surrounding circumstances and the character of the work to be done under the contract."

There was a verdict and judgment for plaintiff.

Judgment reversed.

Ashley Cockrill, for appellant.

The criterion by which plaintiff's skill was to be judged was the skill of those who hold themselves out generally to do the kind of work in question, and the court erred in charging that the skill required was only such as is found in the locality where the work is done. Ewell, Malpractice, p. 21; Wood, Master & Servant, p. 311; 3 Houst. (Del.) 35; 29 A. 1117; 51 Me. 594; 4 Sneed (Tenn.), 65; 39 Vt. 447; 34 Ia. 286; ib. 300; 1 Swan (Tenn.), 69; 8 East, 350.

F. M. Fulk, for appellee.

OPINION

RIDDICK, J., (after stating the facts.)

We are of the opinion that the judgment of the circuit court should be reversed.

The evidence is conflicting and sufficient to support the verdict, but there appears to be an error in the instruction of the presiding judge, calculated in this case to mislead the jury. The appellee contracted that he would perform the work for the price of which he sues in "a good and workmanlike manner." The learned judge of the circuit court instructed the jury that these words "were to be construed in their usual and ordinary acceptance among skilled workmen in the community where the contract was made and to be performed." He refused to give an...