Moore v. Detroit Locomotive Works

Citation14 Mich. 266
CourtSupreme Court of Michigan
Decision Date01 May 1866
PartiesFranklin Moore and others v. Detroit Locomotive Works

Heard April 12, 1866 [Syllabus Material]

The action was brought to recover the balance due for an engine made, sold and delivered by defendants in error to plaintiffs in error for the sum of $ 2,750, and upon which the sum of $ 1,900 had been paid. The action was assumpsit on the common counts. The plea was general issue with notice of special contract, non-fulfillment by defendants in error, and recoupment by plaintiffs in error. The jury found a verdict for plaintiffs below (defendants in error) for the balance of the contract price of the engine and interest, to wit: $ 947.38.

The facts are stated in the opinion.

Judgment affirmed.

Maynard & Meddaugh, for plaintiffs in error:

"The performance of that which a party was under a previous valid legal obligation to do," is not a valuable or sufficient obligation: 1 Pars. on Con., 363; 2 Speers 697; 1 Strobh 339; 2 Camp. 317; 3 E. & B., 559; 10 Iredell 474; 2 Selden 369; 15 Geo. 570; 7 Barb. 590; 2 Watts 424; 14 Id. 607.

So an agreement to receive less than a party is entitled to by his contract, unless upon some new consideration, is void: 7 Exch. 319; 25 Vt. 396.

A right of action once vested, can only be destroyed by a release, under seal, or by the receipt of something in satisfaction of the wrong done: 7 Bing. 821; 23 Wend. 306; 7 Ala. 182; 26 Id. 748; 1 Cow. 122; 13 Johns. 87; 3 Penn. 405; 32 Id. 258; 2 Pars. on Con., 199; Chitty on Con., 764; 28 Conn. 472.

When the defendants received the engine they received no more than they were entitled to, before they agreed to waive damages.

A waiver, before breach, may sometimes operate by way of equitable estoppel, to prevent the strict enforcement of a contract: 6 Exch. 854.

But after a breach there cannot be a waiver, without some new consideration: 11 Ind. 396; 1 Hill 484; 4 Denio 554; Chitty on Con., 776.

Moore & Griffin, for defendant in error:

1. The evidence discloses that neither party, up to the time of the delivery of the engine, insisted on a strict performance of the terms of the contract set up in the plea.

The defendants below did not make the payments in accordance with its provisions; and the plaintiffs below did not deliver the engine at the time at which defendants below claim they should have done.

The words "if in their power so to do," found in the written contract, mean that plaintiffs below would make all reasonable efforts to complete the engine by February 1st, 1864; reference being had to the contract by them already entered into, and their ability to perform: 38 E. L. and Eq., 176.

Defendants below do not rely upon that contract, but upon a verbal and new contract as to time, and the bill of exceptions shows that the written contract and the alleged verbal contract was, in fact, abandoned, prior to the time in each case at which the engine was to be delivered.

2. As to the waiver of damages.

The waiver was in the nature of a settlement of disputes; it prevented litigation with respect to this question of damages; it was a mutual compromise, and can be sustained on this ground.

The prevention of litigation is not only a sufficient, but a highly favored consideration: 1 Pars. on Con., 364.

It may be considered in the nature of a forbearance to bring suit; a party may waive a legal right: Id., 369.

Whether he has done so is a question for the jury: 2 Allen 82.

There is no pretense that any consideration, other than that arising out of the original transaction is necessary: 29 Conn. 82; 11 Iowa 565; 22 Ill. 446; 11 Rich. S. C., 267; 7 Cush. 516; 17 Me. 34; 16 Id. 77.

Even strict performance of the condition of a bond may be waived by parol, as by enlarging the time: 7 Conn. 47.

In this case the plaintiffs below had been unable to procure the engine to be built as soon as they desired. It had been completed at great loss to them. When completed, they were at liberty to deliver or respond in such damages for non-delivery, as defendants below might be entitled to recover.

The defendants below could waive the contract also; and if plaintiffs below afterwards went on and delivered the engine, on the faith of the new promise that defendants below would waive damages, or, which is the same thing, would pay the value of the engine, there is nothing in the law which prevents them from relinquishing the contract, and proceeding on the new agreement: 9 Pick 298; 3 Penn. 445.

Such new agreement may, by its terms, or legitimate implication, dispose of any right of action arising under previous contract: 10 Ind. 282; 19 Pick. 349; 14 Johns. 329; 28 Vt. 264; 7 Ark. 123.

Moore, acting on behalf of plaintiffs in error, was frequently at the shop of defendants in error, after the 1st of March, while the work was in progress, urging it on. By so doing, plaintiffs in error must be held to have acquiesced in the delay, and estopped themselves from claiming damages therefor: 24 Ill. 268.

OPINION

Cooley, J.

Suit being brought by defendants in error to recover the value of a steam engine made and delivered to Moore, Smith & Co., the latter seek to recoup from the contract price damages alleged to have been sustained by them, in consequence of a failure to complete and deliver it at the time agreed. The ruling of the court below had the effect to exclude this defense; and the only question before us is as to the correctness of that ruling.

The contract for the engine was in writing, and bore date December 16, 1863. The locomotive works agreed to make and deliver the engine on or before the first day of February then next, if in their power so to do; and Moore, Smith & Co. agreed to pay therefor $ 2,750, as follows: one-fourth on the signing of the contract; one-half on delivery, and a note at thirty days from that time, with interest, for the remaining fourth.

Moore, Smith & Co. claimed, on the trial, that sometime before the first of February, a new verbal contract was made, modifying the written contract, as to the time of completion, and that thereby the locomotive works made an absolute agreement to complete the engine by the first of March, or by the first boat to Saginaw, to which place it was to be shipped. It was not, however, completed and delivered until the first of June. Moore, some three or four weeks after the second contract, called on the defendants in error to see how the work was progressing, and was informed by Lothrop, the superintendent, that no progress had been made, and that government work occupied the whole time and power of the shop. Lothrop said he had written to Buffalo, Cleveland and Toledo to get assistance, but the shops at those places were all busy, and all the shops in Detroit were busy also, and he could get no help from any of them. Moore himself made some effort to get help at Wayne and Robinson's, but was unsuccessful. He called quite frequently to see about the work, and was informed that the locomotive works were doing all they could, and would complete the engine as soon as they could. Moore, Smith & Co. were very anxious to get the engine, and on its delivery to them made no objection to receiving it on account of delay, and no claim for damages.

Plaintiffs below gave evidence tending to show that no time was fixed by the oral agreement, within which the engine should be completed and ready for delivery; and also that at the time it was delivered, they expressly stated to Moore, Smith & Co. that they should not deliver it, unless the latter would waive all damages on account of its non-delivery before; that Moore, Smith & Co. were anxious to obtain the engine, and, in consideration of its delivery, did waive all claim for such damages. The circuit judge charged the jury that if there was such a waiver as was claimed, the locomotive works were entitled to recover the contract price.

If the oral agreement as to time was as claimed by plaintiffs in error, it is probable that at the time when delivery was made, they had a valid claim against the locomotive works for damages sustained in consequence of the delay. It appears, however, that they had not strictly performed the contract on their part; for the first payment was made forty days after it was due, and neither that, nor the second was as much as was agreed. But as the first payment was received without objection, so far as the case shows, and it does not appear that full payment of the second was insisted upon at the time the engine was delivered, their failure to fulfill cannot be considered material in the case, except as it may have a bearing upon the alleged waiver of damages.

It was argued for the plaintiffs in error that the naked question presented by the case was, whether where one waives a valid claim for damages on the sole consideration of the delivery to him of that to which he was legally entitled before, such a waiver can bar an action for damages. In this case however, it must be borne in mind that the engine had not yet become the property of Moore, Smith & Co., and would not, under the contract, until delivery. They...

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