Helm v. Wilson

• Citation: 4 Mo. 41
• Parties: HELM v. WILSON.
• Decision Date: 31 May 1835
• Court: United States State Supreme Court of Missouri

4 Mo. 41

HELM

v.WILSON.

Supreme Court of Missouri.

May Term, 1835.

M'GIRK, J.

Wilson brought an action of assumpsit on a special agreement; the first count goes for an agreement by which Wilson agreed to dig a ditch and tail race for a mill; the race was to be of a certain description. Helm was to do certain things on his part to enable the plaintiff to proceed. Then there is a count on the quantum meruit--issue non-assumpsit. There was proof of the special agreement; there was also proof, though somewhat conflicting, that some of the work, that is the tail-race, was done according to contract. There was evidence to show that some work had been done on the head-race; but not enough to effect the object had in view by the contract. How deep this race should have been seems to depend on the fact of raising certain dams along the embankments so as to carry the water from the springs to a still house, which Helm was to make and keep the water following on behind the ditcher, so that he would be constantly informed when the race was deep enough. This Helm failed and refused to do. Whether Wilson dug all he could without running the risk of digging too much, does not appear to be settled by the testimony. There is, as to this point, conflicting testimony. When the evidence was closed on both sides, the plaintiff's counsel prayed the court to instruct the jury; 1st. That if they find from the evidence that Wilson made a contract as stated in either of the special counts, and has performed it, they will find for him. 2nd. That if they find from the evidence that there was no contract, but, the work was done at the request of the defendant then, under the general count, they must find for the plaintiff. 3rd. That if the jury find that there was as pecial contract, and Wilson performed work under that contract different from the work to be done, then they will find for the plaintiff on the general count, for work and labor. Which instructions were given.

The defendant's counsel then asked the court to instruct the jury. 1st. That if they found the agreement, and that the plaintiff had not performed all he could have performed, they must find for the defendant. 2nd. The second is the same in substance as the first. 3rd. That if the work proved was done under a special agreement, but not according to it, then they must find for the defendant unless the defendant prevented the execution of the special agreement. These instructions were refused. There was a verdict for the plaintiff, and judgment thereon, to reverse which the defendant brings his cause to this court by appeal.

In the argument of the cause, only one point was made, which is, that where a special agreement exists, and the plaintiff proves a part execution of the work, and then the work ceases without the balance being done and a part only or the whole performed, but different from the agreement: in either case the party can recover for what the work is worth. To prove the plaintiff can recover in such cases, Mr. Rees for the appellee cites 1 Sel. N. P. by Wheaton 58, note 23; Bul. N. P. 139; Strange 638; 10 Johns. R. 36; Labeaume v. Hill & Keese, 1 Mo. R. 47( a); 1 Bos. & Pul. 354.

The case in Buller does support the proposition assumed by the appellee's counsel. In page 139, Buller lays down the law thus. If a man declare on a special agreement and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from what is laid--he cannot recover on either count, not on the first, because of the variance, nor on the second, because there was a special agreement. But if he proved a special agreement and the work done, but not pursuant to such agreement, he shall recover on the quantum meruit, for otherwise he would not be able to recover at all, as if in a quantum meruit for work and labor, the plaintiff proved he had built a house for the defendant: though the defendant should afterwards prove there was a special agreement, about the building of it, viz: That it should be built at such a time and in such a manner, and that the plaintiff had not performed the agreement. Yet the plaintiff would be allowed to recover upon the quantum meruit, otherwise he could not recover at all, though doubtless such proof would be proper to lessen the damages. It is admitted by us that such has been holden to be the law in some cases both in America and England since Keek's case cited by Justice Buller in Buller's N. P. 139, decided at nisi prius Oxon. 1744. We never have seen the cases reported any where. The case above cited from Strange cannot be now had, and the case of Cooke v. Manstone, Bos. & Pul. is wrongly cited. The case cited from 10 Johns. R. 36, Lenningdale v. Livingston, is a case of this kind: the plaintiff agreed to furnish certain logs, to bore and lay them, he procured and brought the logs to the place and bored some; the defendant then refused to have the balance of the work done, took the logs and used them. The plaintiff was allowed in this case to recover on the general count for the reason that the defendant had prevented the execution of the special agreement. The court in that case advert to the doctrine as laid down in Buller 139, and seem to admit that the law is correctly laid down there. In our opinion this case in Johnson was put on the correct ground, which is this, that where there is a special agreement and the plaintiff is prevented by the defendant from doing the work, then the plaintiff may recover the worth of the labor at least or he may recover for the whole as if performed. Such was the opinion of this court in the case of Paulsel v. Clendennin, 3 Mo. R. 230. In the case of Labeaume v. Hill & Keese, 1 Mo. R. 47, this court did lay down the law to be, that when there was a special agreement declared on and proved though not performed according to the agreement, yet the plaintiff may recover for the work really done. We are of opinion that the law in this case was not well considered; in this case the court laid down the law to be that where there was a covenant to do work in a particular manner and at a particular time, that parol evidence might be given to prove the work done, and that the plaintiff might recover on a quantum meruit, though the work was proved not do have been done according to the covenant.^(a)

This point was expressly decided by the court on the authority of the case put in Buller 139, and also on the authority of the case in 10 Johns. R. 38. See page 47, 1 Mo. R. So far as regards the case in 10 Johns. R. the court seems to recognize the authority of Keek's case in Buller, but expressly decided the case on the ground, that the defendant had put an end to the contract and prevented the plaintiff from proceeding to execute the agreement. The case of Labeaume v. Hill & Keese as to this point has never been well received by the bar as we understand. In the case of Crump v. Mead, 3 Mo. R. 235, this court decided, that where there was a covenant to perform work the party could not abandon his covenant and go for work and labor on quantum meruit. It seems to us this case overrules the doctrine as laid down in Labeaume's case. It is a matter of regret that the report of Keek's case cannot be had: if it were in truth such a case as Justice Buller says it was, then we cannot see how it can be consistent with the law. Buller says the case was that it undertook to build a house of a particular kind, and to do the work in a particular manner and at a particular time, he may recover for whatever the work is worth, though it should appear that the work was not done in the manner contracted for. Can this be the law? It seems to us it cannot be so. It is a general rule of law that a contract must be...