Hassell v. Nutt

• Decision Date: 01 January 1855
• Citation: 14 Tex. 260
• Parties: JOHN HASSELL v. W. M. NUTT.
• Court: Texas Supreme Court

14 Tex. 260

JOHN HASSELL

v.W. M. NUTT.

Supreme Court of Texas.

1855.

Where the defendant pleaded former acquittance in a Justice's Court, this court said: “But it is sufficient to dispose of this ground of defense that it does not affirmatively appear that the judgment was rendered upon a trial upon the merits, (there had been a verdict and judgment.) It was unnecessary for the plaintiff to resort to evidence aliunde to prove that the judgment was not so rendered. But if had been necessary, the testimony of the justice who tried the case was admissible for that purpose.”

It seems that where a contract is entire and incapable of apportionment, or where the plaintiff sues for a recovery, as for a complete performance, on the ground that performance was presented by the defendant, the action is premature if brought before the period of time, if any, at which the contract contemplated full performance.

A contract of hire for a year as overseer for a certain part of the crop is divisible; and if the overseer he discharged before the expiration of the year without his fault, he may sue immediately for the damages occasioned by such discharge. (Note 38.)

Where the suit was brought by an overseer for damages occasioned by his discharge, and the contract was for a year, to be compensated by a fifth of the crop, it was held that the plaintiff was properly permitted to prove the value of the crop as a circumstance from which to estimate the damage occasioned by his discharge.

It is objected that the petition does not allege the damages sought with sufficient specialty. This might have been a good ground of exception to the petition, but was not a ground for rejecting the evidence proposed to prove the damages claimed by the plaintiff in his petition.

A contract of hire for a year, as overseer, for a fifth part of the crop is divisible; and if the overseer be discharged before the expiration of the year, without his fault, he is entitled to recover not the full value of one-fifth part of the crop, nor merely the value of his services during the time he was actually engaged in rendering them, but also the damage he sustained by reason of the defendant's breach of the contract.

Though there may have been error in the charge, the finding of the jury appears to have been conformable to law and the evidence. The defendant, therefore, can have sustained no injury in consequence of the ruling complained of. (Note 39.)

Appeal from Anderson. On the 2d day of January, 1852, Hassell employed Nutt as his overseer for one year, for which Nutt was to receive one-fifth of the crop and the use of a house on the farm.

The agreement was in writing. About the 1st of April Hassell discharged Nutt, without assigning any cause, and refused to pay him for his services already rendered, which Nutt offered to take, but ordered him to leave his premises immediately. Nutt thereupon sued Hassell August, 1852, alleging the contract and breach thereof in general terms, and claiming damages in general terms for five hundred dollars. Defendant pleaded a former acquittance in a Justice's Court, and alleged negligence and want of skill on the part of the plaintiff.

The plaintiff proved performance on his part until the time of his discharge; and the testimony showed that the work on the farm was as far forward as any in the vicinity. The plaintiff then proved the amount of land in cultivation, the probable yield per acre, the value of corn and cotton that fall, and the value of the house per month, amounting to about $900, to the introduction of which evidence the defendant excepted, without any statement of the particular objection.

The defendant called a justice of the peace, who produced his docket and original papers in a suit which appeared to have been brought upon the contract now sued on. There was the verdict of the jury in the case, as follows: “We, the jury, find for the defendant--there being no cause of action before us.” Upon which a regular judgment was entered for the defendant. On cross-examination the justice testified, the defendant excepting, that he had excluded the agreement from the jury, on the ground that it had not been set forth in the citation nor indorsed thereon; that thereupon Nutt's counsel abandoned the case; that he was unwell at the time, and told the attorneys to fix up the judgment; that it was written out by one of them; that he supposed it was a nonsuit; that such was his understanding at the time.

The court charged the jury that if they found that Hassell had broken the contract they should find for Nutt, and that the measure of damages would be the value in the year 1852 of an average crop of Hassell's place, and the value of the rent of the house Hassell was to furnish Nutt from the time of the breach of the contract to the end of the year.

The defendant asked the court to charge the jury that the plaintiff was only entitled to recover what his services were reasonably worth for the time he was actually employed in the service of the defendant. Refused.

Verdict and judgment for the plaintiff for $163.92.

G. F. Moore, for appellant.

I. It seems, from the manner in which the appellee's petition was drawn, that he supposed that the refusal of the appellant to permit him to perform his part of the conditions of the contract, coupled with the tender of the performance of his part, gave him not only an immediate right of action, but also entitled him to demand the entire compensation that he would have been entitled to if all the conditions on his part had been performed, which position the judge's charge will show was sustained by the court below.

This position is, I think, fully denied by the case of Watts v. Ladd, 1 McMullan, 26.

And even the right to recover on a quantum meruit before the expiration of the term when payment under the contract became due is expressly denied by other authorities. (Chit. on Con., 580 a, and authorities referred to in notes n and o; 1 Sup. U. S. Dig., p. 187, sec. 288.)

But perhaps it will be urged by the appellee that the true construction of the petition is that he only seeks under it the value of the services which he actually rendered, and that the contract is made a part of the petition for the purpose of furnishing a basis of the proof of the quantum meruit of those services as agreed upon by the parties under the contract. If so, I would ask why is there no allegation in the petition showing the proportion of services performed or when the appellee was discharged, but that damages are claimed as if there had been an entire breach by the appellant and the averment, of an entire performance, or acts which seem evidently to be presented as equivalent to an entire performance, of all the conditions of the contract on the part of the appellee?

But still this would not meet the objection to the petition, for if the appellee is entitled to demand, for the services actually rendered, such a part of the entire compensation agreed upon as the time of service would be to the whole year, yet, as by the contract this amount was not due until the end of the year, this suit would still have been brought for...