Martin v. Massie

• Decision Date: 27 November 1900
• Citation: 127 Ala. 504,29 So. 31
• Parties: MARTIN v. MASSIE.
• Court: Alabama Supreme Court

29 So. 31

127 Ala. 504

MARTIN v. MASSIE.

Supreme Court of Alabama

November 27, 1900

Appeal from circuit court, Montgomery county; John C. Anderson Judge.

Action on contract by P. C. Massie against William L. Martin. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

This suit was brought by the appellee, P. C. Massie, against the appellant, William L. Martin, to recover of the defendant the amount claimed to be due the plaintiff under a certain contract by which the plaintiff agreed to perform certain work for the defendant in codifying the laws of Alabama.

The original complaint counted upon a special contract in writing which is set out therein. After the introduction of all the evidence in the case, upon the court intimating that it would give the general affirmative charge requested by the defendant, the plaintiff asked leave to amend his complaint by adding the common counts. The facts pertaining to the allowance of the amendment and the exceptions thereto are sufficiently set forth in the opinion, as are also the other facts of the case necessary to an understanding of the decision on the present appeal.

The court in its general charge to the jury instructed them among other things as follows: "I charge you that notwithstanding the contract was broken by the plaintiff and terminated by the defendant, yet if the defendant used the work of the plaintiff, then the plaintiff can recover for what his services are reasonably worth, and you have the contract before you which has been introduced in evidence and which you may consider in ascertaining the value of said work or services." To this portion of the court's general charge the defendant separately excepted, and also separately excepted to the court's giving at the request of the plaintiff the following written charge: "The court charges the jury, that if they believe from the evidence that the plaintiff may have neglected to do work given him to do under the contract in evidence by the defendant, or did any other act which might amount to a breach of the contract, yet if they also believe from the evidence that defendant, being aware of such neglect, omission or act, made any payment on said contract to plaintiff, then this amounted to a waiver by defendant of such neglect or omission or act of plaintiff committed prior to the day of such payment."

At the request of the defendant in writing, the court instructed the jury as follows: "If the jury believe the evidence the plaintiff cannot recover on the written contract." The defendant separately excepted to the court's refusal to give among other written charges requested by him, the following: (1) "The court charges the jury that if they believe the evidence they will find a verdict for the defendant." (2) "If the jury believe the evidence the plaintiff cannot recover under the common counts."

There were verdict and judgment in favor of the plaintiff fixing his recovery at $145. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Martin & Bouldin, for appellant.

Gordon Macdonald, for appellee.

HARALSON J.

In Hawkins v. Gilbert, 19 Ala. 57, it was said for the court by Dargan, C.J., that "when one party has entered into a special contract to do certain work, or perform a specified service, and the work is done, but not in conformity with the terms of the contract, yet, if it be accepted and was beneficial to the party for whom it was to be performed, the party performing the work or rendering the service, may recover on a quantum meruit, as much as the work or service was reasonably worth, notwithstanding it be not performed according to the terms of the special contract." Under the principle thus announced, if the contract is an entire one, the obligation of the party engaging the other to do the work or perform the service, to pay for the same, rests upon the fact that there has been no abandonment of the contract by the employé, and the employer notwithstanding the work or service has not been performed according to the terms of the agreement therefor, has accepted the same and derived benefit therefrom. But, where there has been a failure to perform the contract, according to its terms, and the employer has not accepted the same, there can be no recovery against him for work and labor done. Bell v. Teague, 85 Ala. 211, 3 So. 861. In the case of Hawkins v. Gilbert, supra, the court added, after stating the first principle above quoted: "But we have seen no case that holds the law to be, that a party may abandon the work without cause or reason, before it is finished, and recover on a count for work and labor. Such a principle would enable a party to violate his contract with impunity, and still recover for the service rendered or labor performed."

The general rule is, that where there is an express contract, the plaintiff cannot resort to an implied one, but must recover, if at all, on the express agreement. "An exception to the rule, however, is that he may recover on the common counts, although the evidence discloses a special agreement, when such agreement has been executed and fully performed, and no duty remains but the payment of the price in money by the defendant. But so long as the contract continues executory, the plaintiff must declare specially," and prove performance. Jonas v. King, 81 Ala. 285, 1 So. 591; Burkham v. Spiers, 56 Ala. 547; Power Co. v. Hanby, 101 Ala. 15, 13 So. 343; Woodrow v. Hawving, 105 Ala. 240, 16 So. 720; Stafford v. Sibley, 106 Ala. 189, 17 So. 324; Anderson v. English (Ala.) 25 So. 748; Darden v. James, 48 Ala. 33; Abercrombie v. Vandiver (Ala.) 28 So. 491; 2 Smith, Lead. Cas. (8th Ed.) 33.

Cases often arise, that an employer under an entire contract with his employé is in a position, known to the parties in the beginning, where he cannot escape accepting the work or services of the latter, as they are rendered, and his acceptance of what has been done is unavoidable, and to that extent not his choice, and his promise to pay therefor, from such acceptance, cannot be implied. The books abound with illustrations of this character.

In Wright v. Turner, 1 Stew. 29, the plaintiff proved that under a contract to serve the defendant three months at $10 a month, he had served him about one month and eight days, and then, against defendant's consent, left his service; that when he did so, the latter offered to give him a duebill for his wages for the time he had served. The court said: "The contract was entire. As the plaintiff left the defendant's service without his consent, he is not entitled to recover, even for the time he had served. The offer to...