Heitz v. Sayers

• Decision Date: 16 February 1923
• Citation: 32 Del. 207,121 A. 225
• Court: Delaware Superior Court
• Parties: JOSEPH HEITZ v. JAMES SAYERS and FRANCES T. SAYERS

121 A. 225

32 Del. 207

JOSEPH HEITZ v. JAMES SAYERS and FRANCES T. SAYERS

Superior Court of Delaware, New Castle County

February 16, 1923

[Copyrighted Material Omitted]

Superior Court for New Castle County, January Term, 1923.

Assumpsit No. 249, September Term, 1921.

Case heard on motion for new trial and in arrest of judgment. Plaintiff declared on the common counts, including a quantum meruit and a quantum valebant count. The defendants filed the usual pleas in assumpsit, including a plea of nonassumpsit and a notice of recoupment.

The evidence produced by the plaintiff tended to show that he was a contractor and builder; that he verbally agreed with the defendants to make certain alterations in and repairs to a house belonging to them as husband and wife or as tenants by the entirety; that by said agreement he was to receive the usual union wages for himself and his men for doing said work and was to purchase all necessary materials and to be reimbursed for the amounts paid therefor; that he was to be paid by the defendants for said work, labor and materials every week, every other week, or whenever he wanted such pay that no specified time was fixed for the completion of said work; that after working several weeks on said property and pursuant to said contract he was paid five hundred dollars, on account of the amount due him, by one of the defendants, James T. Sayers; that some time after that and at a later stage of the work he asked for another payment; that said request was not only refused, though in violation of the express terms of said agreement, but the existence of said agreement was denied, the claim being made that an entirely different agreement had been entered into, and that the work done by the plaintiff had been done thereunder; that by reason of this the plaintiff stopped work and never completed his contract.

The plaintiff's claim for labor done and materials furnished, after deducting a $ 500.00 payment therefrom, amounted to one thousand, six hundred and sixty-four dollars and sixty cents.

The evidence produced by the defendants tended to show that the verbal agreement, under which the plaintiff was to alter and repair their property, provided that said work, including the necessary materials, should not cost over $ 1300.00 and should be completed by September 1st, 1920; that no time was fixed for the payment of said sum of $ 1300.00; that the plaintiff partially performed said work under said contract but abandoned it before completion, claiming that a different contract had been made with the plaintiff and that there had been a part performance thereunder; that it cost the defendants $ 384.78 to complete the work agreed to be done by the plaintiff and abandoned by him and that they were also compelled to pay two months' extra rent, amounting to $ 180.00, by reason of said work not being completed by September 1st, 1920, as was provided by the contract.

The defendants requested the Court to charge the jury, among other things, that--

The reasonable value which the defendants derived from the plaintiff's work, where the plaintiff was in default, "must be determined by ascertaining what part of the work was finished and what it cost to complete the work, substract what it cost to complete the work from $ 1300.00, if you believe that was the sum agreed upon, from the remainder deduct the damages, if any, sustained by the Sayers, either by delay or by remaining defective workmanship, or both. If what you have left exceeds $ 500.00, your verdict should be for the plaintiff for such excess, but, if what you have left is less than $ 500.00, your verdict should be simply for the defendants."

This request was refused and the instructions quoted in the fourth reason for granting a new trial were given. The jury found a verdict for the plaintiff for the whole amount of his claim, amounting to $ 1664.60. The defendants then moved for a new trial and in arrest of judgment. They assign as reasons for the granting of a new trial that this Court gave the following instructions to the jury:

First. "The defendants' counsel has asked that you be instructed to return a verdict for the defendants, among other grounds, on the ground that a married woman's interest in property held by her and her husband as tenant-by the entirety is not her sole and separate property, and that she can, therefore, make no contract with respect thereto. I cannot so instruct you."

Second. "If, after considering all the evidence you believe that the contract relied on by the plaintiff existed between him and the defendants, including the said Frances T. Sayers, that the work was done and the materials were furnished thereunder, and that said contract before being fully performed was repudiated by the defendants, * * * your verdict should be for the plaintiff for such an amount as the work done and materials furnished by the plaintiff were reasonably worth."

Third. "If you believe that there was an express contract on the part of the plaintiff to make the alterations and repairs on the defendants' property for $ 1300.00, as claimed by the defendants, but that such contract was not fully performed, either in the stipulated time and manner, or otherwise in accordance with the terms thereof, and that said contact was finally abandoned before completion, but that work had been done and materials furnished thereunder, and that said work was accepted by the defendants, and was of some value and benefit to them, your verdict should be for the plaintiff, for such part performance, and for such sum as such work was reasonably worth; subject, however, to a deduction of such damages as were suffered by the defendants, if any, by reason of the plaintiff's failure to comply with his said contract, and subject to the further deduction of $ 500.00 admitted to have been paid by the defendants in payment of the work done by the plaintiff."

Fourth. "If you should find that there was an express contract, between the plaintiff and the defendants to make the alterations and repairs in question to the defendants' property for the sum of $ 1300.00, and your verdict should be for the plaintiff, in assessing the damages for the reasonable value of the work done by him, you may consider the compensation fixed by such contract, together with any evidence bearing upon the question of the benefits which the defendants may have derived from what was done by the plaintiff."

The verdict of the jury is set aside, and a new trial is granted.

Henry R. Isaacs for plaintiff.

James I. Boyce for defendants.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

This motion raises the following questions:

(1) Where a husband and wife own property as tenants by the entirety, can the wife join with her husband and make a valid contract for the repair of said property?

(2) What is the proper measure of damages where work has been done and materials furnished in part performance of a special contract, but where said contract has not been fully performed; (a) because of the default of the plaintiff; (b) because of the default of the defendant?

It is admitted that a conveyance of real estate to a husband and wife creates an estate by the entirety, and that such estates have not been abolished in this State by the Married Woman's Act. Kunz v. Kurtz, 8 Del.Ch. 404, 68 A. 450, and Hurd v. Hughes, 12 Del.Ch. 188, 109 A. 418. Whether such estates have been in any way affected by such acts is, however, a different question. An estate by the entirety is a peculiar estate, both husband and wife being seized and, therefore, being the owners not merely of equal interests in, but of the whole estate during their joint lives. Because of this peculiarity such estates can neither be partitioned, nor can they, or the interest of either owner therein be sold, except by the joint act of both husband and wife; nor can a judgment against one tenant become a lien on the entirety property or on any interest therein, during the joint lives of the husband and wife. And on the death of one tenant the surviving husband or wife continues to own the whole estate and acquires no new interest by the death of the other.

Can such a property right be construed as the separate property or estate of the wife, under Chapter 197, vol. 30, Delaware Laws, approved April 21, A. D. 1919? The defendants contend that it cannot, and in support of this contention cite Speier v. Opfer, 73 Mich. 35, 40 N.W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556. With reference to the Married Women's Acts, the Court of Chancery, in Hurd v. Hughes, supra, in which a tenancy by the entirety was involved, said:

"These statutes in Delaware, as elsewhere, free her estate of her husband's possession, control or disposition, and from liability for his debts."

The conclusion reached in the above case was largely based on the decision of the Court of Errors and Appeals in Evans v. Lobdale, 11 Del. 212, 6 Houst. 212, 22 Am. St. Rep. 358; though that case did not involve a tenancy by the entirety.

Kohn v. Collison, 15 Del. 109, 1 Marvel 109, 27 A. 834, is to the same effect as Evans v. Lobdale; and Kunz v. Kurtz, supra, expresses the same thought when, adopting the language of Judge Strong, in Diver v. Diver, 56 Pa. 106, it held, in substance, that the married women's acts merely regulated the enjoyment of property vested in a married woman and did not affect the creation of or vesting of any estate in her.

Hurd v. Hughes was argued March 12, 1920, and, therefore, after the enactment of Chapter 197, vol. 30, though no special reference was made to it in that case.

But it cannot be contended that this act was intended to be less liberal toward married women than the statutes construed in the above cases.

Chapter 19...