Ganong v. Brown

• Decision Date: 15 January 1906
• Citation: 88 Miss. 53,40 So. 556
• Court: Mississippi Supreme Court
• Parties: ANDREW M. GANONG ET AL. v. JOSEPH H. BROWN

40 So. 556

88 Miss. 53

ANDREW M. GANONG ET AL. v. JOSEPH H. BROWN

Supreme Court of Mississippi

January 15, 1906

FROM the circuit court of Grenada county, HON. J. T. DUNN, Judge.

Ganong and others, copartners under the firm name of Ganong &amp Chenoweth, the appellees, were the plaintiffs in the court below. Brown, the appellee, was defendant there. From a judgment in favor of defendants the plaintiffs appealed to the supreme court.

Ganong & Chenoweth made a contract with Brown to paint and paper a house, the contract providing that the work was "to be completed in good, workmanlike style for the amount set opposite, $ 775. . . . . Work to begin and to be finished as soon as possible." While plaintiffs were engaged in the work the building was destroyed by fire. Plaintiffs had expended $ 323.25 for material and labor up to the time the house was destroyed. Brown had the building insured as a completed building, with the permission of the insurance company to finish the same, and was paid by the insurance company the full amount for which the building was insured. Plaintiffs demanded of the defendant the payment of the amount expended by them for material and labor, and upon failure of defendant to make settlement filed their suit alleging in the first count of their declaration that the "insurance paid to Brown represents the value of the building as it was at the time of its destruction, which value was made in part by the labor done on and material furnished in said building by plaintiffs, and that said defendant has money representing their labor and material as put on said building, yet they are refused payment," etc. The second count alleges an indebtedness of defendant to plaintiffs for work and labor done and material furnished etc. A bill of particulars and the contract were attached to the declaration. Defendant demurred to the first count of the declaration, assigning that the plaintiffs entered into an entire and indivisible contract, and undertook to complete the work and furnish the material used, and failed to comply with their contract, and, further, that the said first count fails to show that defendant accepted plaintiffs work and material, and that plaintiffs had no right to or interest in the proceeds of the insurance policy, which was a personal contract between defendant and the insurance company. This demurrer was sustained by the court. Defendant pleaded the general issue to the second count. After hearing the testimony for the plaintiffs the court below gave a peremptory instruction for the defendant.

Judgment reversed and cause remanded.

S. A Morrison, for appellant.

Whether a contract is entire or severable depends upon the intention of the parties. Pollock v. Buch Electric Ass'n, 128 U.S. 446; Morris v. Wybaugh, 159 Ill. 627; note to Champlin v. Rowley, 18 Wend., 194; Moore v. Bennett, 40 Calif., 251; State v. Jones, 21 Nev. 510; Southville v. Beesley, 5 Ore., 458; Wellville v. Dueise, Ohio St., 333; Hutchins v. Sutherland, 22 Nev. 363; Steine v. Bodine, 60 Pa. 267; Cyc., vol. 6, pp. 7, 8, 9, "Building Contracts," and cases cited on p. 9.

An overseer's contract for one year, for the sum of $ 650, to be paid at the expiration of the year, held not an entire contract. Harrison v. Sale, 6 Smed. & M., 634.

The intention of the parties is the soul of the contract. Taylor v. Hart, 73 Miss. 22 (s.c., 18 So. 546).

The pole star which guides the court to the equitable understanding and adjustment of the parties; and this intention is discovered (a) by the language employed; (b) whether the consideration is a lump sum or apportionable; (c) the circumstances surrounding the parties at the time of the contract (Levy v. Dyess, 51 Miss. 501); (d) and above all by the construction the parties place upon the contract by their subsequent acts (Ramsey v. Brown, 77 Miss. 124; s.c., 25 So. 151); Columbia v. Gallager, 124 U.S. 505; Katz v. Bedford, 77 Calif., 319; O'Dea v. Winona, 41 Minn. 424); (e) and in working contracts, whether the work depends for completion on the labor of another workman not under the control of the suing contractor. Hollis v. Chapman, 36 Texas, 1.

Now let us take up this intention by these initia and see to what it leads.

(a) The language employed: "To be completed in a workmanlike style for the sum set opposite" is not an absolute term, phrase or sentence, meaning that nothing is to be paid until the job was finished. The word completed in the sentence does not refer to a limit of time with regard to payment, but means that the work throughout was to be done in a workmanlike manner, and not that it was to be finished as an entire job before payment.

"Whether a contract is entire or divisible cannot be determined by a single term, phrase or sentence, though the same be large enough to include such meaning, unless throughout the whole agreement the surrounding circumstances, good sense and justice of the case, it definitely appears that it was the intention of the parties to the contract that it should be entire and indivisible." Bailey v. DeCrespany, L. R., 4; Q. B., 180.

(b) The consideration: While the consideration of $ 775 is a lump sum and the only amount inserted (out of place) in the specifications, yet this sum was made up of the following items: (1) papering the house, $ 280; (2) painting house, $ 350; (3) creosoting the roof (which was finished), $ 90; (4) extras within the house, $ 55. Each party to the contract knew the basis on which the whole was calculated, item for item. If the consideration can be apportioned, it is the duty of the court to apportion it whether the parties have done so or not. Dibol v. Minot, 9 Iowa 403; Spear v. Snider, 20 Minn. 463; McMaster v. State, 108 N.Y. 542; East Union Tp. v. Comrey (Pa.), 9 A. 290; Briggs v. Titus, 7 R. I., 441.

(c) As to the conditions and circumstances surrounding the parties at the time of the contract: We find that Ganong is a laboring man, dependent solely for his daily bread upon his daily labor; that he employed laborers like himself, whom he paid off on Saturdays. For him to have entered into a contract that he was not to receive anything until he had finished the job, would have simply put him out of business. He was compelled to have part pay for part performance in order to finish the part remaining; this is the custom here and nearly everywhere else, as a glance at the various decisions from sundry courts will show. It is therefore absurd to suppose that Ganong entered into any such contract as that claimed by the appellee. If each individual case is to be decided by the application of common sense, then in this case by such application must be given to the plaintiff.

(d) The interpretation the parties placed upon the contract by their subsequent acts: It is very evident that Ganong did not consider this an entire contract, because the day before the fire we see him giving an order on Brown in favor of Guy & Pressgrove for material in the sum of $ 70; this action taken before the fire shows how Ganong construed his contract. But how about Brown? A few days before the fire we find him insuring the property "as of a finished building," thus asserting openly and for his own benefit that the property was his--the entire building; on this policy he drew $ 5,000 full payment of his whole loss, to which he was entitled as of a finished building. This act on the part of Brown wholly rebuts his present contention. Partridge v. Forsythe, 29 Ala. 200. By the peculiar phraseology of his insurance contract he not only accepted all work done up to the date of the contract with the insurance company, but all that might follow thereafter in case of destruction of the property. He cannot say to the man, who by his labor and material brought his house to that degree of completeness which enabled him to insure it as a finished building, "Your labor and your material, on which I have drawn money from the insurance company as my own, are not in fact mine, as I swore they were, but they are yours and you must bear the loss. Because my loss is not as great as it would have been had your contract been completed, I will not pay you anything. The house was mine until I drew the insurance, then it was yours." To sustain the above, see Partridge v. Forsythe, 29 Ala. 200; Cook v. McCabe, 53 Wis. 250.

(e) Furthermore, the work of Ganong depended for completion on the labor of other workmen not under his control; for this reason alone it is apportionable. Hollis v. Chapman, 36 Texas, 1.

Conceding the contract to be entire and indivisible, does it fall under either of the three well-recognized exceptions to the general rule of such contracts? If so, what are the rights of the parties?

On two out of three of these exceptions our court has already passed, holding in each case as I now contend.

Exceptions to the general rule, "that a man must do what he contracts to do or pay damages for not so doing," Water Company v. Knappman, 49 L. R. A., 572 (N. J.):

1. Where performance is prevented by the operation of the law.

(a) Rights of the parties; neither can recover damages for the breach, but the workman recovers for his labor and material at the contract rate to the time when the law intervenes and prevents further performance. Whitfield v. Zellnor, 2 Cush., 663.

2. Where death or sickness prevents the skilled workman from bringing his particular skill to bear in carrying out his contract.

(b) Rights of the parties; neither can recover damages of the other for the breach, but the workman or his estate recovers at the contract rate for his labor to the happening of the event, which makes further performance impossible. Clifton v. Clark, 83 Miss. 443 (s.c., 36 So. 251).

For "Act of God" in another form, see Walton v. Hollis 16...