Hoyle v. Stellwagen

• Decision Date: 25 April 1902
• Docket Number: 3,596
• Parties: HOYLE v. STELLWAGEN ET AL
• Court: Indiana Appellate Court

63 N.E. 780

28 Ind.App. 681

HOYLE v. STELLWAGEN ET AL

No. 3,596

Court of Appeals of Indiana

April 25, 1902

From Lake Superior Court; H. B. Tuthill, Judge.

Action by John Stellwagen and others against William F. Hoyle for breach of contract. From a judgment for plaintiffs, defendant appeals.

Reversed.

Charles F. Griffin, for appellant.

OPINION

BLACK, J.

The appellees sued the appellant for breach of contract in writing, whereby the appellees were employed by the appellant to do certain carpenter work in the construction of a schoolhouse, the breach alleged being the discharge of the appellees after having performed labor thereunder, and before the completion of the work; the appellees alleging that up to the time of their discharge they had complied with all the conditions of the contract on their part to be performed, and had ever since been willing and ready to perform the contract. The contract contained a provision as follows: "It is further agreed by and between the parties hereto that after due notice in writing has been given that the work is not progressing rapidly enough, or that the work is inferior to that specified, in accordance with the plans and specifications and this contract, then this contract shall be canceled."

It is contended on behalf of the appellant that this provision of the contract gave him the sole prerogative of deciding whether the work performed by the appellees was progressing rapidly enough, or whether it was inferior to that specified in the plans and specifications and the contract, and therefore, that the court erred in instructing the jury concerning the contract, as follows: "If the plaintiffs, up to the time of the service of the notice on them by defendant, had not, up to that time, committed a breach of it, then the defendant must be said to be the person who broke the contract," etc.; also, "that under the contract, the defendant had no absolute right to declare the contract at an end, at his own will and pleasure, but only for good cause upon a non-performance or other breach by plaintiffs"; also, that by the clause of the contract above quoted "it became the duty of the plaintiffs to perform the said work in a proper and workmanlike manner and so to perform it as not to delay the other contractors or workmen upon other branches of the work being performed upon said building. By this is meant, it was the duty of the plaintiffs to reasonably perform and not unreasonably hinder others in their performance; and it is for you to determine in this case whether the plaintiffs, substantially and according to the terms of said contract, performed the work incumbent upon them, or whether they unduly hindered the work of the other contractors in an unreasonable manner."

It is to be observed that the portion of the contract in question does not provide that the employer may cancel the contract at any time if the work be not satisfactory to him, or be not approved by him. The work was not of a kind to be done with primary or special reference to the private taste or individual liking or approval of the employer, but was to be done with special reference to the plans and specifications and the other provisions of the contract of employment. The notice in writing provided for was not to be a notice of his disapproval or dissatisfaction, but was to be due notice of certain facts in their nature capable of proof. We think a proper construction requires that this particular provision meant that when the certain specified breaches of the contract or either of those breaches had in fact taken place then, after due notice thereof in...