Hilton v. Hanson

• Decision Date: 27 December 1905
• Citation: 62 A. 797,101 Me. 21
• Parties: HILTON v. HANSON et al.
• Court: Maine Supreme Court

62 A. 797

101 Me. 21

HILTON

v. HANSON et al.

Supreme Judicial Court of Maine.

Dec. 27, 1905.

Action by Herbert M. Hilton against Charles E. Hanson and David M. Parks. Verdict for plaintiff for $143.44. Motion for a new trial overruled.

Assumpsit on account annexed for services rendered in cutting, splitting, and piling wood, and for cutting and hauling logs, and for peeling hemlock bark, etc. The writ also contained an omnibus count of the common form. Tried at the December term, 1904, of the Supreme Judicial Court, Somerset county. Plea, the general issue, together with a brief statement alleging that there was a written contract duly executed between the plaintiff and the defendants upon which the plaintiff's action should have been brought, and that the action of assumpsit, as brought by the plaintiff, could not be maintained, and also alleging that the plaintiff had broken said contract, thereby damaging the defendants to the amount of $500, which said sum the defendants asked to be allowed to them against the plaintiff by way of recoupment.

Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Daniel Lewis, for plaintiff. Morse & Anderson, for defendants.

SPEAR, J. This is an action of assumpsit containing a count for quantum meruit, brought by the plaintiff to recover of defendants for the sum of $168.94, and Interest thereon amounting to $15.20, for services rendered in cutting, splitting, and piling wood, and for cutting and hauling timber, etc. The defendants set up in defense a written contract duly executed between the plaintiff and defendants, upon which they say the plaintiff's action should have been based, and that his action of assumpsit cannot be maintained. The plaintiff admits the execution of the written contract, but says that it was waived and a new oral agreement substituted in its place, whereby he was thereafter to receive an agreed compensation as set forth in his account annexed for services rendered.

That a written contract may be waived either directly or inferentially is almost too well settled to require citation. Waiver may be proved by express declaration, or acts and declarations manifesting an intent not to claim the supposed advantage, or by a course of acts and conduct, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive. Peabody v. Maguire, 79 Me. 586, 12 Atl. 630. Parol proof of the subsequent waiver of any of the stipulations in the written contract, or of any right under such contract, is admissible, even when such contract is under seal. Adams v. Macfarlane, 65 Me. 152. In Blood v. Enos, 12 Vt. 626, 36 Am. Dec. 363, the court say: "It is always competent for the parties to rescind a subsisting simple contract by a naked verbal agreement to that effect, whether this was the intention of the parties is to be determined by the jury from what passed between them." Waiver is also held to be a question of fact. See Peabody v. Maguire, supra, and cases cited.

It is also well settled, when a contract has been thus waived, an action of quantum meruit will lie for work and labor done. Abbott's Trial Evidence (2d Ed.) p. 446, § 8. It is held in Greenleaf (volume 2, § 104) that the" plaintiff may resort to the common counts, where the contract, though partly performed, has been abandoned by mutual consent, or where it appears that what was done by the plaintiff was done under a special agreement, but not in a stipulated time or manner, and yet was beneficial to the defendant See, also, Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 Am. Dec. 475.

But the defendants reply further and assert that, even if this is so, the plaintiff's action cannot be sustained, inasmuch as he has brought suit against the defendants jointly, and the evidence in the case shows that the modified contract, if made at all, was made between the plaintiff and only one of the defendants to the original contract without any knowledge or consent on the part of the other, and that one joint contractor cannot thus waive the original contract and bind the other to a new or modified contract.

The defendants were owners in common of the land on which the wood and timber was to be cut by the plaintiff. The legal position of the defendants, with regard to the right of one joint contractor to waive or bind the other to a new and modified contract without his knowledge or consent, may be well taken, but the plaintiff avers that the defense set up by the defendants is not warranted by the facts, and that the defendant Charles E. Hanson, instead of being...