Siebert v. Leonard

• Decision Date: 01 January 1872
• Citation: 17 Minn. 410
• Parties: ELIAS SIEBERT v. CHARLES LEONARD and others.
• Court: Minnesota Supreme Court

17 Minn. 410

ELIAS SIEBERT

v. CHARLES LEONARD and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Ramsey county, overruling a demurrer to the complaint.

Lampreys, for appellant.

H. H. Finley and C. K. Davis, for respondents.

BERRY, J.

Plaintiff and defendants entered into a sealed contract, whereby plaintiff agreed with defendants "to do or cause to be done all the excavation and masonry, including all brick and stone work, furnishing all materials for the same, except cut stone, for the erection and completion of a three-story business house" in St. Paul, in accordance with plans and specifications and details of the same. Plaintiff was to receive $2,820, to be paid as follows: $200 when the excavation was completed; $300 when the basement and cellar were completed; $500 when the first-story walls were completed; $500 when the second-story walls were completed; $500 when the coping was on; and the balance when the contract was completed.

The complaint further shows that no plans or specifications were furnished to the plaintiff, and alleges that by reason of defendants' failure to furnish the same the contract, "so far as it required said work to be done according to such plans and specifications, was practically abandoned, and as to that portion thereof modified, in that the plaintiff was to perform such work in such manner as the defendants should direct and according to their orders;" that plaintiff commenced the erection of the building under the immediate direction and supervision of defendants, and furnished all the materials required by the contract; that the materials so furnished were of good quality, and were accepted and approved of by defendants; that plaintiff proceeded with the work according to defendants' directions, as they insisted that he should do, notwithstanding he repeatedly warned them that the walls, if erected according to such directions, would be insecure; that solely in consequence of being built conformably to such directions, and not in consequence of any fault or negligence of plaintiff, or of any defect in materials, the building was so defectively, insecurely, and unsafely constructed that when nearly completed it fell to the ground; that by reason of such falling the plaintiff was prevented from completing his job, although when the building fell it would have required the labor of the force then employed by him but one day to finish the same, which labor would have been of the value of $100 only; that defendants have paid plaintiff $1,851.70, in part payment for materials furnished and work done as aforesaid; that after the falling of the building plaintiff demanded payment of $868.30, (being the unpaid balance of the entire contract price less $100,) no part of which has been paid.

From this abstract of the complaint it will be seen that this action is not brought upon the contract between the parties, either as originally made or subsequently modified, but is in the nature of an action upon a quantum meruit and quantum valebant, in which the plaintiff seeks to recover the reasonable value of the labor performed and materials furnished by him; and for the purpose of determining what is such reasonable value in this case, and of stating in full the origin of his cause of action, the above-mentioned contract is referred to.

As the original contract was under seal, it is argued that the modification was void and of no effect since it was by parol. A parol modification is, however, effectual if the modified contract is executed, (Allen v. Jaquish, 21 Wend. 629; Munroe v. Perkins, 9 Pick. 298;) or if a party has acted upon it so that he cannot be placed in statu quo. Lawrence v. Dale, 11 Vt. 549; Leathe v. Bullard, 8 Gray, 545; Le Fevre v. Le Fevre, 4 Serg. & R. 241; 1 Greenl. Ev. (12th Ed.) § 302. In this case, according to the complaint, the plaintiff executed the contract as modified, except so far as he was in effect prevented from doing so by the fault of defendants.

So far as the modification is important in this case, and for the purposes for which the contract of the parties is referred to, we think it should be treated as executed.

Upon the theory of the complaint it is executed, so far as the plaintiff makes any claim in reference to it, and that it was not executed in full is owing to the fault and wrong of defendants, of which they can certainly take no advantage; and if there be any doubt as to the soundness of this position, there can...