Pungs v. American Brake Beam Co.

• Decision Date: 01 October 1901
• Citation: 87 N.W. 364,128 Mich. 318
• Court: Michigan Supreme Court
• Parties: PUNGS v. AMERICAN BRAKE BEAM CO.

87 N.W. 364

128 Mich. 318

PUNGS v. AMERICAN BRAKE BEAM CO.

Supreme Court of Michigan

October 1, 1901

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by William A. Pungs against the American Brake Beam Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Russel & Campbell, for appellant.

Barbour & Rexford, for appellee.

HOOKER J.

A former review of this cause is reported in 82 N.W. 1066 where it was held, on the evidence then before the court that the judge erred in holding that there was no evidence of the value of the plaintiff's services, upon the theory that the cause was, in that instance, tried upon the count for work and labor, and not upon the special count, or in reliance upon a right to recover as upon a contract fully performed. As we understand the record, the case has now been tried upon the theory that the special contract was performed. The plaintiff might, therefore, rely upon the common counts, which would be a good and sufficient declaration upon that theory or upon the theory that he had not performed the contract, but was entitled to pay for what he had done. Upon the first theory it would be necessary for plaintiff to prove the contract and its performance. He would fail upon that theory if defendant should show that he had not performed the contract according to its terms, and would then be left to an action for services rendered. Upon the latter theory the plaintiff must show the rendition of services, and make some proof of their value. As we held on the former hearing, the writing would constitute some evidence of value. It would not be conclusive, however, and it would be proper to show the true value of the services actually rendered, and in attempting this it would be defendant's right to introduce evidence showing the true character of the services, and that they did not come up to the standard required by the contract, upon which the contract price was fixed. It would also have been competent to show that the services were actually worth less than the contract price. The defendant's counsel sought to show, by a cross-examination of the plaintiff and by the testimony of others, that the plaintiff did not give the defendant the time and attention necessary to the performance of the contract according to its terms. They offered to show that he did not provide the material on the best terms possible by showing that he secretly received commissions from the houses from which he purchased material for the defendant, and that he did not turn out good work. The court excluded all such testimony, and directed a verdict for the plaintiff.

If we correctly understand plaintiff's brief, the case was rested upon the theory that plaintiff was discharged under a right reserved to the defendant to terminate the contract at any time, and that, therefore, the plaintiff might treat the contract as performed. This was correct if the contract actually was performed, but it did not deprive the defendant of the right to show nonperformance. This contract was terminated because the defendant found that plaintiff was not rendering the service contracted for. The contract was, not that he should give his entire time to the defendant, but that he should do certain work for a given period. The contract contained other stipulations also. It is claimed that at the same time he was performing similar services for and drawing a similar salary from, another concern. The defendant sought to show that, while he was about its place of business, more or less, he did not perform the services agreed upon; that he neglected the business, and actually did not render the services contracted for. We see no reason why it should not have been allowed to do this. In the case of Bolt v. Friederick, 56 Mich. 20, 22 N.W. 187, a man hired out to work by the month. He was under obligation to give his time to his employer. He did so for nearly the whole period, when the service was ended by mutual consent, and the amount his due agreed upon. There was a substantial performance and an acceptance. The defendant afterwards attempted to show, not that he did not perform his contract to give his services, but that he disobeyed his orders. Here defendant attempted to contradict plaintiff's claim that he performed the services. It cannot be said that the defendant accepted plaintiff's services as a compliance with the contract. It expressly repudiated them, and, instead of a termination of the contract by mutual consent, it was a termination based upon a claim of...