Jones v. Woodbury

• Decision Date: 08 January 1850
• Parties: Jones v. Woodbury.
• Court: Kentucky Court of Appeals

50 Ky. 167

Jones v. Woodbury.

Court of Appeals of Kentucky.

January 8, 1850

Contracts. Building Contracts.

ERROR TO THE MCCRACKEN CIRCUIT.

Crockett, for plaintiff.

Husbands, for defendant.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated and judgment of the Circuit Court.

JONES employed Woodbury, a carpenter, to build for him a framed house, the different apartments and dimensions of which were exhibited in a ground plan, and Woodbury agreed to perform the work for the price of $600 or $650, to be paid by the conveyance of a certain lot in the town of Paducah, estimated at the value of $800, the excess to be accounted for in carpenter's work. This agreement was verbal only. Whether there was or was not a memorandum at the foot of this ground plan, indicating that the work was to be done in a neat plain, workman-like manner, this might be implied as a term of the agreement from the size of the house and the price to be paid, if nothing to the contrary appeared. The house was in fact erected and finished by Woodbury with much costly work, and he claims in this action of assumpsit upward of three thousand dollars, and has obtained a verdict and judgment for more than that sum, as the value of his work and materials.

Such an extraordinary excess above the contract, can only be justified by the fact, to be established with reasonable certainty: 1. That in the execution of the work, there were corresponding departures from the original design, either in the plan and dimensions of the house, and the quantity of materials and labor, or in the quality of the materials and finish or style of work, or in some or all of these particulars; and, 2. That these departures were directed by the employer, or assented to by him understandingly, with a knowledge or at least with reason to believe that they would greatly increase the cost of the building to him. When the builder has undertaken the erection of a house for another for a specified price, without specification as to the manner or style of the work, it is his duty when he proposes to do any part of it in a more costly style than would be justified by the agreed price, to apprize the employer of the difference in the cost. The employer may not know, and is not presumed to know the gradations of price pertaining to the different modes or style of finish. He relies, and has a right to rely upon the undertaker of the work for information on this subject. And the latter, having undertaken to complete the house for a fixed price, can not increase it ab libitum, merely on the ground that he was allowed to proceed with and complete the work according to his own judgment or taste, or that certain modes of work proposed by him, pleased the fancy and met the approbation of the employer. Prima facie, the employer has a right to suppose, unless apprized of the contrary, that every proposition as to different portions of the work, is made under the contract for the whole, and is intended merely to present to him a choice of modes within that contract. And to get rid of this inference, the undertaker must show either that he apprized the employer that his proposition was a departure from the original design and contract, and would be attended with increased cost, or that it was of such a character as necessarily to carry this information to him. And as to costly work done in his absence and in a manner not previously approved by him, it is not sufficient to show that upon his return he was pleased with its appearance, and did not order it to be removed or pulled down.

It is the duty of a builder who undertakes to do work or perform a job of work at a specified price when he proposes any change, to notify the employer if it will be attended with any increase of price: if this be not done the employer is authorized to in fer that there will be no increase of price.

The general principle applicable to the case of a special contract for erecting a house, when in the pro gress of the work there have been alterations or ad ditions not originally contemplated nor expressly provided for, seems to be that as far as the work can be traced under the original contract, it shall be paid for under that contract, and that the residue which can not be brought within the contract shall be paid for as if there were no contract. But the safety of employers, and the good faith proper to be observed in all cases, requires that this rule should be so applied as not to violate the principles above stated; and they seem to indicate further, that extra work either in quantity or quality, unless done under an express agreement, or at least a statement of the price, should not be charged for at a greater rate in reference to the measure and value price of such work, than the contract price bears to the measure and value price of the work contracted to be done. So that if the contract price was a fourth or a fifth less than the price estimated by measure and value, the extra work should not be estimated at more than three fourths or four fifths of its price according to measure and value.

The general rule in respect to building under a special contract at a fixed price is, that so far as the work has been done under the contract, the prices agreed on are to govern, and for extra work not provided for in the contract, and reported to or suggested by the employer the rate of charge should not exceed the prices fixed in the special contrac.

The plaintiff in this case claims, as we understand his position that there was by the assent or acquiescence...