Udo Peist v. C. M. Richmond

• Decision Date: 03 October 1923
• Citation: 122 A. 420,97 Vt. 97
• Parties: UDO PEIST v. C. M. RICHMOND ET AL
• Court: Vermont Supreme Court

122 A. 420

97 Vt. 97

UDO PEIST v. C. M. RICHMOND ET AL

Supreme Court of Vermont

October 3, 1923

May Term, 1923.

ACTION OF CONTRACT to recover an overdue and unpaid installment under a building contract. Plea, the general issue. Trial by jury at the December Term, 1922, Caledonia County, Butler J., presiding. At the close of the plaintiff's case the court directed a verdict for the defendant and judgment was entered thereon. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Porter Witters & Longmoore for the plaintiff.

Searles & Graves for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and SLACK, JJ.

OPINION

POWERS

These parties entered into a written contract by the terms of which the plaintiff was to build a house for the defendant for a specified sum, payable in installments as therein provided. For present purposes, it may be stated broadly that one of these installments fell due, and that the defendant wrongfully refused to pay it, and refused to go on under the contract except upon an unwarranted condition. Thereupon, the plaintiff abandoned the work and brought this action of contract using the common counts as his complaint. At the close of the plaintiff's evidence the court granted the defendant's motion for a verdict, and the plaintiff excepted. During the discussion of this motion, the plaintiff expressly declined to seek a recovery on a quantum meruit basis, and limited his claim to the overdue and unpaid installment; and he adheres to this position in this Court. In these circumstances he cannot maintain his suit.

He concedes that his right to so recover, depends upon the divisibility of the contract. But the contract, being for a finished structure for a gross sum for the work as a whole, and its complete fulfillment being manifestly contemplated by the parties as the basis of their arrangement, is an entire contract, and is not made divisible by the fact that the price for the work is payable in installments. This is sufficiently shown by Creamery Package Mfg. Co. v. Russell, 84 Vt. 80, 78 A. 718, 32 L. R. A. (N. S.) 135. There, as here, the contract called for the construction of a completed building for a fixed price payable in installments as the work progressed. "The price for the whole work," says Chief Judge Rowell, "was $ 1,500, payable in installments as the work progressed; but the entirety of the contract was not thereby severed and the price apportioned to the different parts of the work, but the whole price remained as the consideration for the complete performance by the defendant,"--the builder. And this is generally so held. Freeman v. Campbell, 22 Ga. 184; Chamberlin v. Booth, 135 Ga. 719, 70 S.E. 569, 35 L. R. A. (N. S.) 1223; Bridgeport v. Scott Co., 94 Conn. 461, 109 A. 162; Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 12 L. R. A. 571, 25 A. S. R. 654; McConnell v. Corona City Water Co., 149 Cal. 60, 85 P. 929, 8 L. R. A. (N. S.) 1171.

The defendant's failure to make the payment called for by his engagement was a breach of the contract that went to its essence. The situation thus presented to the plaintiff did not, in the respect here involved, differ from what it would have been if the defendant had prevented him from carrying out the contract, as in Derosia v. Ferland, 83 Vt. 372, 76 A. 153, 28 L. R. A. (N. S.) 577, 138 A. S. R. 1092, or had put it out of his own power to perform, as in White v. Lumiere North America Co., 79 Vt. 206, 64 A. 1121, 6 L. R. A. (N. S.) 807, or had positively and unequivocally refused to perform, as in Temple v. Duffy, 96 Vt. 114, 117 A. 101, or had refused to perform except upon a condition that he had no right to impose, as in Amsden v. Atwood, 68 Vt. 322, 35 A. 311, he, not being in default, could treat the contract as terminated, and without further performance, seek his remedy in the courts. Preble v. Bottom, 27 Vt. 249; Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 A. 406; Auer v. Robertson Paper Co., 94 Vt. 473, 111 A. 570.

This right of abandonment is, not infrequently, spoken of as the right of rescission. It was so characterized at the argument; which prompts us to suggest, in passing, that technically it differs from the right of rescission in that the contract may still be resorted to by the party not in default for the recovery of his damages. Earnshaw v. Whittemore, 194 Mass. 187, 80 N.E. 520; De Mille Co. v. Casey, 115 Misc. 646, 189 N.Y.S. 275; Anvil Mining Co. v. Humble, 153 U.S. 540, 38 L.Ed. 814, 14 S.Ct. 876.

When the plaintiff was ready to bring his suit, he had a choice of remedies: He...