Miller v. Trustees of Mariner's Church

• Decision Date: 01 June 1830
• Citation: 7 Me. 51
• Parties: MILLER, Warden of the State Prison, v. The trustees of the MARINER'S CHURCH
• Court: Maine Supreme Court

7 Me. 51

MILLER, Warden of the State Prison, v. The trustees of the MARINER'S CHURCH

Supreme Judicial Court of Maine, Kennebec

June, 1830

THIS was an action of assumpsit brought under a special resolve of the legislature, passed March 5, 1829, for the price of a quantity of hammered stone; the defendants having leave to claim in offset the amount of damages occasioned by any breach of the contract.

At the trial, before Weston J. the defendants offered Mr. Cutter one of the trustees, as a witness. The counsel for the plaintiff proposed, with a view to show his interest in the cause, to ask him if he was not responsible as surety for the defendants for the payment of money which they owed. Before this question was answered, the defendants' counsel asked him if he was so responsible by reason of any verbal contract; and he stating that he was not, they objected to any parol evidence of his liability, insisting on the production of the written contract. This objection the judge overruled; and the witness thereupon testified that he was surety for the defendants on certain promissory notes given for monies borrowed. But notwithstanding this liability, the judge admitted him as a competent witness.

Several witnesses on the part of the defendants positively testified that the late warden of the State prison agreed that the stones, which he contracted to furnish for the use of the defendants, should be delivered at Portland by the fifteenth day of June, 1828. But the late warden as positively testified that he did not and would not agree absolutely that they should be delivered at that time; but promised that he would endeavor and do the best he could to cause them to be delivered as early as that.

The stones not having been wholly furnished till November following, the counsel for the defendants insisted that, from the evidence adduced, they were entitled to damages, whether the contract was found to be such as was testified by their witnesses, or by the late warden. If according to the former then they were entitled to large damages arising from loss of labor, loss of rents, and the defective character of the work. If by the latter, they still contended that the contract had been violated, but claimed damages upon a basis less definite and extensive.

The judge instructed the jury that if they believed that the contract was such as was testified by the defendants' witnesses, they ought to allow to the defendants the whole or such parts of their claim for damages, as the parties bestowing proper attention upon the subject, at the time of making the contract, might have contemplated as likely to result from its nonfulfillment. At the request of the counsel for the plaintiff, he further instructed them that if the contract was for delivery of the stones by a fixed time, the defendants would, in that case, be entitled to no more damages than they had or would have sustained, if, when the time of delivery had expired, they had stopped the receiving of any more from the warden, and had proceeded, with due diligence, to furnish themselves elsewhere; --and that had the materials been bricks or boards, which could readily have been procured at short notice, in the place where their building was being erected, the measure of damages would have been to estimate what would have been sufficient for the necessary delay and additional price, if any. The counsel for the defendants objecting to this instruction, the judge added, at their request, that if the defendants were prevented or deterred, by the conduct or assurances of the plaintiff after the breach of the contract, from stopping the further receipt of stones from him, and proceeding to supply themselves elsewhere, there ought to be no mitigation of damages upon the ground suggested by the counsel for the plaintiff. He further proceeded to instruct the jury, that from the encouragement which the defendants received from the plaintiff, after the alleged breach of the contract, that the stones should be furnished with all possible despatch, and the time which would necessarily be required to prepare them if they had then ordered them from another quarter; it did not seem that common prudence or a due regard to their interests, or the interest of the plaintiff, required them to have taken any other course than they did take.

The jury, under these instructions, allowed certain damages to the defendants, and returned a verdict for the plaintiff for the balance of his account; which was taken subject to the opinion of the court upon the correctness of the instructions given, and the admissibility of the parol testimony received from Mr. Cutter.

Judgment on the verdict.

The cause was submitted without argument by R. Williams and Allen for the...