Howell v. Medler

• Citation: 2 N.W. 911,41 Mich. 641
• Court: Supreme Court of Michigan
• Decision Date: 14 October 1879
• Parties: GEORGE W. HOWELL and others v. EDWARD J. MEDLER.

2 N.W. 911

41 Mich. 641

GEORGE W. HOWELL and others v. EDWARD J. MEDLER.

Supreme Court of Michigan

October 14, 1879

Plaintiff brought one action for work done upon two separate contracts--one for the construction of a house and the other a barn. Held, that damages resulting from failure to perform either of such contracts could only be offset against the amount found due under the contract upon which such damages arose. A party cannot testify as to his opinion as to the amount of his damages, but the facts upon which the jury can make such estimates are to be given.

Black & Quinn, for plaintiff in error.

B.W Huston, for defendant in error.

COOLEY J.

Plaintiff sued defendant on two building contracts made by him with one Hodges, by one of which Hodges was to build and complete for him a hotel in Caro on or before the tenth day of December 1877; and by the other of which Hodges was to build and complete a barn at Caro, commencing November 6, 1877, and prosecuting the work without delay until finished. The hotel was not completed within the time agreed, and on December 14 1877, defendant took possession and proceeded to complete it himself. A short time previous to this he seems, also, to have practically assumed control of finishing the barn, on complaint of inexcusable delay on the part of Hodges. Hodges when thus excluded, assigned his claims under both contracts to plaintiffs, and they sued on the common counts.

In thus bringing suit, as assignees of Hodges, plaintiffs were entitled to recover exactly as Hodges would have been had no assignment been made. The rule of law applicable to such cases has been several times explained in this state, and further discussion is needless. Hodges was entitled to recover at contract rates for the work done and material furnished by him under each of the contracts, less any damages defendant might have sustained by reason of the failure in Hodges to make complete performance. Allen v. McKibbin, 5 Mich. 449; Wildey v. School District, 25 Mich. 419; Wilson v. Wager, 26 Mich. 452. If the damages under either contract exceeded or equalled the value of what had been done and furnished under it, measured by the contract standard, there could be no recovery whatever in respect to that contract.

The substantial error committed on the trial consisted in this that the circuit judge allowed the case to go to the jury as if there had been one contract only instead of two. This would make no difference in the result if it turned out that pla...