Hemminger v. Western Assur. Co.
| Decision Date | 21 April 1893 |
| Court | Michigan Supreme Court |
| Parties | HEMMINGER v. WESTERN ASSUR. CO. |
Error to circuit court, St. Clair county; Arthur L. Canfield Judge.
Action by Arthur Hemminger against the Western Assurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
William E. Leonard, (William M. Cline, of counsel,) for appellant.
Atkinson Vance & Wolcott, for appellee.
Defendant was the owner of a steam barge and schooner, both sunken in Lake Huron, the one off Sand Beach, and the other off White Rock. On September 2, 1889, they entered into a written contract with Thomas and Medar Isabell, by the terms of which the Isabells were to recover from these vessels everything worth saving, and deliver the same upon the dock at Port Huron, and in consideration the Isabells were to receive one half of the net amount realized from the sale of the machinery, outfit, and other things so saved. No time within which this work was to be done was named in the agreement. The Isabells procured the necessary apparatus, commenced the work, and prosecuted it with varying success during that fall. They encountered severe weather, and were compelled several times to abandon the wreck and seek shelter. They continued their work, as the weather permitted, until about November 1st, but were then compelled to abandon it for that season, intending to resume it in the spring. They recovered, and delivered, as agreed "two spars and the rigging of these spars, five sails, and a lot of running gear, one towline, two Atlantic pumps, one windlass, one wheel, one capstan, one lot of eyebolts and ringbolts, one set of davits, one set of cat-heads, one anchor, and two shot of chain, one compass, one log, one gaff, one air pump, one staysail boom, one heater, one pony engine, one force pump, one automatic pump, one steam chest head, one cylinder head, and lot of broken cast-iron steam pipes, half a ton of gas pipes, one cut-off, one exhaust, iron bulkhead, fire-room floor, one lot of fire grates, and one boiler." On the 12th day of December, 1889, defendant sold all the articles recovered except the boiler, and gave a bill of sale of all the wreckage of both vessels remaining therein to one Thompson. The Isabells assigned to plaintiff.
The declaration counts upon a breach of the contract, and contains counts for labor expended, and expenses incurred, in and about the prosecution of the work. At the close of the proofs plaintiff elected to recover upon quantum meruit, on the theory that defendant "had violated the contract and prevented its completion." The general rule is well settled that a party to a contract where labor is to be performed, upon the breach of that contract by the other party, has two remedies open to him. He may sue upon the contract, and recover damages for its breach, or he may ignore the contract, and sue for services and labor expended, and expenses incurred, from which he has derived no benefit. Kearney v. Doyle, 22 Mich. 294; Mitchell v. Scott, 41 Mich. 108, 1 N.W. 968; Boyce v. Martin, 46 Mich. 240, 9 N.W. 265; Shulters v. Searls, 48 Mich. 552, 12 N.W. 697; Bush v. Brooks, 70 Mich. 461, 38 N.W. 562; Bromley v. Goff, 75 Mich. 218, 42 N.W. 810; Moore v. Nail Co., 76 Mich. 606, 43 N.W. 644. To view preceding link please click here In case he pursues the latter remedy the measure of damages as to services is not necessarily the contract price, even though the value of the services can be measured or apportioned by the contract rate, but he may recover what his services are reasonably worth, although in excess of the rate fixed by the contract. Hosmer v. Wilson, 7 Mich. 294; Kearney v. Doyle, supra; Shulters v. Searls, supra. The rule is otherwise, however, where the plaintiff is the author of the breach. The basis of a recovery by one who is in default is an implied agreement arising from the reception of something of benefit or value; but, where the party suing is not responsible for the breach, neither the right, nor the amount of the recovery, depends upon the measure of benefit received by the party guilty of the breach. The rule laid down by Christiancy, J., in Hosmer v. Wilson, supra, is that "the plaintiff having appropriated and received the benefit of the labor, or, what is equivalent, having induced the plaintiff to...
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