Hillyard v. Crabtree's Adm'r.

• Decision Date: 01 January 1854
• Citation: 11 Tex. 264
• Parties: HILLYARD v. CRABTREE'S ADM'R.
• Court: Texas Supreme Court

11 Tex. 264

HILLYARD

v.CRABTREE'S ADM'R.

Supreme Court of Texas.

1854.

Where one contracts in writing to do an entire thing, as to build a house, in consideration of a certain price for the whole, and after performing part, is disabled by sickness, from fulfilling the contract he is entitled to recover for the part performed, if it be beneficial to the other party. (Note 45.)

Where one is entitled to recover for the part performance of a contract which is entire, and which has been broken by his own default, the measure of damages is not the actual value of the work done or part performed, nor its value proportionate to the price to be paid for the whole, but the employer is entitled to put the breach of the contract in defense, for the purpose of reducing the damages, or showing that nothing is due (by the plea in reconvention); and the benefit for which he is liable to be charged in that case, is the amount of value received, if any, beyond the amount of damage; and the implied promise which the law will raise is to pay such amount of the stipulated price as remains after deducting what it cost to procure a completion of the whole service, and also any damage which has been sustained by reason of the non-fulfillment of the contract. (Note 46.)

Where a mechanic, working by the job, for an employer, spoils the materials or a part thereof, by a failure to use the care and skill which he either expressly or impliedly contracted to use, the employer is entitled to recover, not the first value of the materials, but their first value, less their present value, if they have been retained by the employer.

Appeal from Austin. The deceased intestate had contracted, by an agreement in writing, to build a gin-house, running-gear, cotton-press and gristmill, for the appellant, for the sum of five hundred and fifty dollars; the appellant to board said Crabtree and hands, and also to furnish a wagon, team, and driver, nails, lumber, iron, etc. Before the completion of the job, the deceased was, by sickness, disabled from its further prosecution, and left, declaring, according to the testimony of one of the witnesses, that he would not return and complete the work. He remained sick for some months; and in the meantime, another mechanic was employed by defendant, who finished the work remaining to be done, for the sum of one hundred and ninety dollars. Defendant's demurrer to the petition was overruled. On the duplicate of the contract, in the possession of appellant, there were indorsed receipts by Crabtree, the deceased intestate, to the amount of three hundred and eight 96-100 dollars. The appellant also attempted to offer in evidence an order, drawn by Crabtree on him, and accepted by him, in favor of Mrs. Johnson, for twenty-five dollars; but which, on objection, was not received. There was also evidence that the useless irons ordered by Crabtree, and the lumber cut up and spoiled by him, amounted to $40 or $50; and there was testimony as to the value of the services of certain slaves belonging to, or furnished by appellant.

The Court instructed the jury, that “the plaintiff's intestate having failed to complete the work undertaken to be performed by him, at a certain price, is only entitled to recover for the work that was actually performed by him, what it was worth at the rate he was to receive for the entire work, had he completed the entire job, according to his contract with the defendant;” and refused to instruct them, “that the measure of recovery by plaintiff is the amount of the contract less the reasonable and fair amount defendant had to pay for completing the job.”

The jury found a verdict for plaintiff for fifty-one dollars and four cents; and a motion for new trial being overruled, defendant appealed.N. H. Munger, for appellant. I. The Court erred in overruling the demurrer of defendant. 1st. Because without entire performance of an indivisible contract, in writing, he was not entitled to recover anything. (Cutter v. Powell, 6 Term R., 320.)

Error in the measure of the recovery of the plaintiff, as ruled by the Judge, viz.: the value of the work done, at the rate he was to receive for the whole job, by the contract, less negro hire, etc., if not allowed in receipts. If that was the rule of law, and such work had doubled in value, after the contract was made, it would be the interest of the contractor to abandon such jobs, recover a rateable portion of the work done, and take a new job. It would encourage unfair dealing, and the loss and injury fall on the innocent and not the wrongdoer. (2 Greenlf. Ev., Sec. 261; Thornton v. Place, 1 Moody & Rob., 218.)

J. H. Robson, for appellee. The instruction asked for is liable to the objection that it was apt to mislead the jury; for it assumes that the defendant had paid an amount for the completion of the work undertaken by plaintiff, and that the amount so paid was a fair and...