Merritt And Co. v. Layton

• Decision Date: 17 February 1910
• Court: Delaware Superior Court
• Parties: MERRITT AND CO., a corporation of the State of Pennsylvania, v. CALEB R. LAYTON

75 A. 795

24 Del. 212

MERRITT AND CO., a corporation of the State of Pennsylvania, v. CALEB R. LAYTON

Superior Court of Delaware, Sussex County

February 17, 1910

Superior Court, Sussex County, February Term, 1910.

ACTION OF ASSUMPSIT (No. 13, February Term 1909), to recover for material and services alleged to have been furnished and rendered in the construction of a cellar for the defendant under a contract.

The facts appear in the charge of the Court.

Verdict, for defendant.

Robert G. Houston for plaintiff.

Charles W. Cullen for defendant.

Judges BOYCE and CONRAD sitting.

OPINION

BOYCE, J. charging the jury:

Gentlemen of the jury:--This action was brought by Merritt and Company against Caleb R. Layton to recover the sum of five hundred dollars, with interest from the thirty-first day of August, A. D. 1906, for materials and services alleged to have been furnished and rendered in the construction of a cellar for the defendant, under a contract, or agreement, entered into between the parties.

The plaintiff has declared on a special contract for the construction of said cellar, and also on a quantum meruit count.

It is not denied that the plaintiff furnished certain materials and performed certain work and labor in the construction of a cellar for the defendant, pursuant to the said contract or agreement, and that the same has not been paid for.

The plaintiff claims that it completed the cellar in full compliance with the terms of the contract, The defendant contends that the cellar is not "a perfectly water-proof cellar, two feet, six inches from the level of the cellar floor," which, it is claimed, the plaintiff had guaranteed to furnish.

A contract, in legal contemplation, is an agreement between two or more persons upon sufficient consideration to do, or not to do, a particular thing.

Adkins and Company vs. Campbell, 22 Del. 96, 6 Penne. 96, 64 A. 628.

The particular contract in this case is evidenced by the letter from the plaintiff to the defendant, dated the twenty-seventh day of June, A. D. 1906, and it is in evidence before you. It reads as follows:

"Mr. C. R. Layton,

Treasury Department,

Washington D. C.

"Dear Sir:--

We have entered your order for the work at your house at Georgetown, Delaware, and will proceed with the construction at once and thank you for the order.

With regard to our proposition, we will guarantee a perfectly water-proof cellar, two feet, six inches from the present level of the floor.

We propose to remove the present floor line of the entire surface, extending around projection and up the exterior wall two feet, six inches, with felt properly covered with pitch, and on this we will lay four inches of concrete reinforced with expanded metal and 1 inch cement top troweled to a smooth finish.

Yours truly,

MERRITT & Co.

Per W. Humphrey."

Other letters bearing upon the contract and this controversy have been admitted in evidence, and they are before you.

It is a general rule (subject to certain exceptions) that a party cannot recover in an action upon a contract, without showing performance of his part of the contract.

Massey, et al. vs. Greenabaum Bros., 21 Del. 20, 5 Penne. 20, 58 A. 804.

Where it appears that what was done by the plaintiff, was done under a special agreement, but not in the stipulated time and manner, and yet was beneficial to the defendant, and has been accepted and enjoyed by him, though the plaintiff cannot recover upon the contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit, which, upon the whole, the defendant has derived from what was done.

Hurlock vs. Murphy and Coperthwaite, 7 Del. 550, 2 Houst. 550.

This Court said, in the case of Porter vs. Beltzhoover, 2 Harr. 484: "When a special contract is declared on, and the plaintiff proves a special contract different from the one...