Lynn v. Seby
| Decision Date | 30 January 1915 |
| Parties | ARTHUR LYNN v. IVER SEBY |
| Court | North Dakota Supreme Court |
From the judgment of the District Court of Eddy County, Buttz, J defendant appeals.
Affirmed.
N. J Bothne, for appellant.
The court erred in sustaining the plaintiff's demurrer to that part of defendant's counterclaim relating to damages for loss in difference in price of grain, caused by respondent's failure to timely perform his contract. Rev Codes 1905, § 6563.
Where a contract is entire and one party, not in default, is willing to complete its performance, the other party, who abandons the contract or refuses to perform it, cannot recover on quantum meruit the value of the labor he has expended in its partial performance. The fixing of the price per bushel for threshing does not make the contract severable. Johnson v. Fehsefeldt, 106 Minn. 202, 20 L.R.A. (N.S.) 1069, 118 N.W. 797.
An entire contract for services cannot be apportioned so as to permit a recovery for part performance by one who is guilty of a breach of contract. Timberlake v. Thayer, 71 Miss. 279, 24 L.R.A. 231, 14 So. 446; Ptacek v. Pisa, 231 Ill. 522, 14 L.R.A. (N.S.) 537, 83 N.E. 221; McMillan v. Vanderlip, 12 Johns. 165, 7 Am. Dec. 299; Munsey v. Tadella Pen Co. 2 N.Y. Anno. Cas. 371, 38 N.Y.S. 159; Stewart v. Weaver, 12 Ala. 538; Olmstead v. Beale, 19 Pick. 528; Hansell v. Erickson, 28 Ill. 257; Koplitz v. Powell, 56 Wis. 671, 14 N.W. 831; Lantry v. Parks, 8 Cow. 63; Badgley v. Heald, 9 Ill. 64; Prautsch v. Rasmussen, 133 Wis. 181, 113 N.W. 416; Widman v. Gay, 104 Wis. 277, 80 N.W. 450; Parsons, Contr. 519, 658, 659.
This action is upon an express contract, and not one by which quantum meruit damages can be recovered.
The complaint is upon an express contract, and there is no allegation as to the reasonable value of the services rendered, or any intimation of intention to recover upon such ground or cause. 3 Words & Phrases, 2606; Tharp v. Blew, 23 N.D. 3, 135 N.W. 659; Lowe v. Jensen, 22 N.D. 148, 132 N.W. 661; Bentley v. Edwards, 125 Minn. 179, 51 L.R.A. (N.S.) 254, 146 N.W. 347; 9 Cyc. 749; Morrow v. Board of Education, 7 S.D. 553, 64 N.W. 1126.
The answer states a valid, substantial defense and it was error to order judgment on the pleadings. Nollman v. Evenson, 5 N.D. 344, 65 N.W. 686; Anderson v. Todd, 8 N.D. 158, 77 N.W. 599; Braseth v. State Bank, 12 N.D. 486, 98 N.W. 79; Marchand v. Perrin, 19 N.D. 794, 124 N.W. 1112; Von Rosenberg v. McDonald, 24 Misc. 771, 53 N.Y.S. 551.
Maddux & Rinker, for respondent.
Where a thresher fails to do the threshing, and loss to the grain is occasioned by the elements, the damages resulting are too remote to admit of recovery. Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250.
This is also true as to defendant's claim for damages resulting to him, in the difference or change in price of the grain, on same ground, and on the further ground that same is speculative. Ibid.
The contract is conceded to be entire in its nature. But plaintiff may recover for the value of his services, less any provable damages sustained by defendant, by reason of plaintiff's failure to strictly or substantially perform his entire contract. Fenton v. Clark, 11 Vt. 560; Hillyard v. Crabtree, 11 Tex. 264, 62 Am. Dec. 475; Pixler v. Nichols, 8 Iowa 106, 74 Am. Dec. 298; McClay v. Hedge, 18 Iowa 66; Duncan v. Baker, 21 Kan. 99; Parcell v. McComber, 11 Neb. 209, 38 Am. Rep. 366, 7 N.W. 529; Bedow v. Tonkin, 5 S.D. 432, 59 N.W. 222.
But the amount of recovery cannot exceed the amount of the contract. Bedow v. Tonkin, 5 S.D. 432, 59 N.W. 222; Parcell v. McComber, 11 Neb. 209, 38 Am. Rep. 366, 7 N.W. 529.
In this case there is no question or dispute as to the value of the services actually performed by plaintiff, as was the condition in the South Dakota case cited by counsel. Morrow v. Board of Education, 7 S.D. 553, 64 N.W. 1126.
Plaintiff has recovered judgment against defendant for a small amount as a balance of a thresh bill. Judgment was granted upon the pleadings. In brief, plaintiff agreed to thresh all of defendant's grain. He threshed the wheat and oats, but refused to thresh the flax. Defendant was unable to procure threshing of his flax that fall, and defends and counterclaims for the amount of the resulting damage from the flax remaining unthreshed through the winter. The contract for threshing was the usual one, with no special provision whereby plaintiff agreed to be responsible in damages for more than ordinary liability. Therefore his counterclaim did not plead a cause of action for damages, under the holding in Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250, for the reason that the loss of grain through resulting exposure to the elements is a remote, and not a proximate, consequence of the breach of the contract, and will not sustain a recovery, the measure of which is defined by § 7146, Comp. Laws 1913, merely declaratory of the common law. It cannot be said that such damages are those "which in the ordinary course of events would be likely to result" from the breach of the contract by plaintiff. Defendant concedes this to be the declared law of this state, but avers that the same should be either overruled or there should be engrafted thereon the further condition that if defendant cannot recover such damages plaintiff should not be allowed to breach his contract and also recover for the part performance by him. Or, in other words, that the parties should be left as they are found, and if plaintiff sees fit to breach his contract, that he should go without pay for the portion performed, and for which he would have received payment had he fully performed.
The question is an important one, and no doubt much can be said towards and much authority cited sustaining the contention of the defendant. The rule at common law was against plaintiff's recovery until the case of Britton v Turner, 6 N.H. 481, 26 Am. Dec. 713, was decided in 1834, in disregard of precedent. But the reasoning of that case is so cogent that it seems to have at least divided, if not changed, the current of authority. It first recognized the fact of the benefits of the part performance to the party who would keep such benefits, incapable of being returned, and still avoid paying anything for the benefits accrued where the contract is not fully performed. It may be remarked that besides affecting parties similarly situated to those before us, this decision must also be precedent upon the right of recovery of those in analogous positions; as, for instance, the farm laborer who hires for the summer and at the end of six months' labor performed quits his employment, and similar cases, where the contract is indivisible. An equitable rule has gradually developed permitting a recovery for the value of the services rendered, irrespective of the breach, giving to the other party to the contract a corresponding right of action in damages separately or in mitigation of the plaintiff's recovery, so that the rights of both may be equitably adjusted at law, notwithstanding the breach and nonperformance of the contract. Bedow v. Tonkin, 5 S.D. 432, 59 N.W. 222; Ball v. Dolan, 21 S.D. 619, 15 L.R.A. (N.S.) 272, 114 N.W. 998; Stolle v. Stuart, 21 S.D. 643, 114 N.W. 1007; Williams v. Crane, 153 Mich. 89, 116 N.W. 554; Allen v. McKibbin, 5 Mich. 449; Bush v. Brooks, 70 Mich. 446, 38 N.W. 562; Buckwalter v. Bradley, 31 Ky. L. Rep. 1177, 104 S.W. 970; Byerlee v. Mendel, 39 Iowa 382; Pixler v. Nichols, 8 Iowa 106, 74 Am. Dec. 298; Hillyard v. Crabtree, 11 Tex. 264, 62 Am. Dec. 475; Burkholder v. Burkholder, 25 Neb. 270, 41 N.W. 145; Duncan v. Baker, 21 Kan. 99; Pitts v. Pitts, 21 Ind. 309. This is true only where that...
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