The Bank of Columbia v. Patterson

• Citation: 7 Cranch 299,11 U.S. 299,3 L.Ed. 351
• Parties: THE BANK OF COLUMBIA v. PATTERSON'S Adm'r
• Decision Date: 05 February 1813
• Court: United States Supreme Court

11 U.S. 299

7 Cranch 299

3 L.Ed. 351

THE BANK OF COLUMBIA v. PATTERSON'S Adm'r.

February 5, 1813

Absent JOHNSON, J. and TODD, J.

ERROR to the Circuit Court for the district of Columbia, in an action of indebitatus assumpsit, brought by the Defendant in error against the president, directors, and company of the bank of Columbia, in their corporate capacity. There were four counts only in the declaration.

1st. Indebitatus assumpsit, for matters properly chargeable in account. 2d. Indebitatus assumpsit, for work and labor done. 3d. Quantum merit; and 4th, Insimul computassent.

The Defendant pleaded non assumpsit, and a tender.

On the trial below, the Defendant took three bills of exceptions.

The 1st stated, that the Plaintiff read in evidence a sealed agreement, dated 10th December, 1807, between Patterson and a duly authorized committee of the directors of the bank, under their private seals. It recites, that a difference of opinion had arisen between Patterson and the committee for building the new banking-house, as to certain work extra of an agreement made between Patterson and the said committee in 1804, and thereto annexed; whereupon it was agreed, that all the work done by Patterson should be measured and valued by two persons therein mentioned according to certain rates, called in Georgetown old prices, and the sum certified by them should be taken by both parties, in their settlement, as the amount thereof. It was also thereby agreed, that the out-houses, respecting which there had been no specific agreement, should be measured and valued by the same persons in the same manner. The agreement of 1804 referred to in, and annexed to the agreement of 1807, was also offered in evidence by the Plaintiff, and states, that Patterson had agreed with the committee to do all the carpenter's work required, agreeably to the plan of the new bank, and states particularly the manner in which it was to be done; and that 'in consideration of the work being done' as stated, the committee agreed to pay Patterson 3,625 dollars as full consideration; and that if, when the work should be finished, the committee should be of opinion that that sum was too much, Patterson agreed to have the work measured, at the expense of the bank, by two persons mutually appointed, who should take the old prices as the standard, and in case the bill of measurement did not amount to the sum of 3,625 dollars, Patterson agreed to take the amount of measurement, for full satisfaction. The Plaintiff then read in evidence a paper of particulars of the work, certified by the persons named in the agreement of 1807. The Defendants offered in evidence the plan of the building, and that it was built principally according to that plan, and the agreement and that any work other than that stated in the plan and agreement, was to be charged separately as extra work, and that it was so charged by Patterson, before the 10th of December, 1807, the date of the 2d agreement, who presented the account (so charged) to the Defendants, claiming the amount of the same, and claiming also for the work done under the agreement of 1804, the sum of 3,625 dollars, and proved, that while the work was going on, the Defendants paid Patterson sundry large sums of money on account thereof.

The Court was thereupon prayed by the Defendants to instruct the jury, that if they believed that the agreement of 1804 was assented to by Patterson and the committee as binding between them, and that the work therein contracted for was done by Patterson, and that the sum of 3,625 dollars therein mentioned was claimed by him on account of the same, then the Plaintiff could recover for no such work, but could only recover for the work done, extra of the said agreement; which instruction the Court refused to give.

It was contended by the Defendants counsel. MORSEL & KEY, that in that refusal the Court below erred because,

1. Although there were alterations in the building, after the agreement of 1804, yet Patterson was bound by that contract, as far as it could be traced—and could only recover for the extra work done under the counts of this declaration, which were all general. 1. Comyn on contracts, 360.—Peake's cases, 103.

2. Because the Plaintiff was allowed to recover the value of certain work by measure and value, under the general counts, when he had contracted to do the said work for a certain stipulated price. Esp. N. P. 138.

The second bill of exceptions states, that the Defendants, upon the same evidence, prayed the Court to instruct the jury, that the Plaintiff was not entitled to recover under any of the counts; which instruction the Court refused to give, but declared that the evidence was competent.

In this refusal, it was contended that the Court erred, because, the implied promise to pay for the extra work was merged in the agreement of 1807, and there was no count on that, or the other agreement of 1804. 2. T. R. 479. Foster v. Allenson.

The third bill of exceptions states, that the Defendants prayed the Court to instruct the jury, upon the same evidence, that the Plaintiff could not recover, unless he should prove that the Defendants, after the measurement and valuation, expressly promised to pay the amount thereof to the Plaintiff—And that the jury could not from the evidence offered, presume any such promise.—This instruction the Court also refused.

It was contended that the Court erred in this refusal, because there was an express agreement under seal, relative to the work—and there was no count on that agreement.

It was also contended, that a corporation aggregate could not promise otherwise than under its seal—and therefore the law could not imply a promise.

In support of this proposition, the following cases were cited. Bac. Ab. 13. Tit. corporation. 4. com. Dig. 258. Tit. Franchises.—Bro. corporation, pl. 34.—1. Vent. 47—1. Salk. 191.—1. Bl. Com. pt. 2.—1. Roll. Rep. 82.—3. P. Wms. 419, Rex v. Bigg.

JONES & C. LEE Contra—cited 5. Cranch, 61. Devcaux v. Bk. of U. S.—Doug. 526, and Kid. on Corporations generally.

As to the form of action, viz. assumpsit and not covenant they said the instruments were under the private seals of the committee, not the corporate seal.—The declaration need not show whether the assumpsit be express or implied. 1. Chitty on pleading, 333, note II.

Where the contract is executed general indebitatus assumpsit lies. Fitzgibbon 302.—Bul. N. P. 139, Weaver v. Burrows. 1. Wil. 117. Alcorn v. Westbrook, Dennison's opinion. 4. Bos. & Pul. 330.-3. Bos. & Pul. 582. 6. East. 564, 569.—1. Sanders, 272, 276. note 2.—Cowp. 284, 289. 9. East. 349.-1. T. R. 134.—Doug. 24. Watson v. Downes.—4. Dall. 428.

STORY J. delivered the opinion of the Court, as follows:

Several exceptions have been taken to the opinion of the Court below, which will be considered in the order in which the objections arising out of them have been presented to us. We are sorry to say that the practice of filing numerous bills of exceptions is very inconvenient for all the points of law might be brought before the Court in a single bill, with a simplicity, which would relieve the bar and the bench from every unnecessary embarrassment.

As the argument on the first exception has proceeded upon the ground, that the agreement of 1804 was completely executed and performed, and the objection relates only to a supposed mistake in the form of the declaration, it will at present be considered in this view. And we take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, nor under seal, where the contract has been completely executed; and that it is not in such case necessary to declare upon the special agreement.—Gordon v. Martin Fitzgibbon 303.—Musson v. Price 4.East 147.—Cook v. Munstone, 4. Bos. & Pul. 351.—Clarke v. Gray, 6 East. 564, 569. 2. Sand. 350. note 2.—In the case before the Court, we have no doubt that indebitatus assumpsit was a proper form of action to recover, as well for the work done under the contract of 1804, as for the extra work. It may, therefore, safely be admitted (as is contended by the Plaintiff in error,) that where there is a special agreement for building a house, and some alterations or additions are made, the special agreement shall notwithstanding be considered as subsisting so far as it can be traced. Pepper v. Burland, Peake's Rep. 103. The first exception therefore, wholly fails.

Under the second exception, the Plaintiff in error has made various objections.

1. The first is, that though a promise would be implied by law, for the extra work against the corporation, yet that such promise was extinguished, by operation of law, by the provisions of the sealed contract of 1807. It is undoubtedly true, that a security under seal, extinguishes a simple contract debt, because it is of a higher nature—Cro. Car. 415. Raym. 449. 2. Jones...