Viles v. Kennebec Lumber Co.

• Decision Date: 30 April 1919
• Citation: 106 A. 431
• Parties: VILES v. KENNEBEC LUMBER CO.
• Court: Maine Supreme Court

106 A. 431

VILES

v. KENNEBEC LUMBER CO.

Supreme Judicial Court of Maine.

April 30, 1919.

Exceptions from Supreme Judicial Court, Kennebec County, at Law.

Action by Blaine S. Viles against the Kennebec Lumber Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

W. R. Pattangall, of Waterville, and H. E. Locke, of Augusta, for plaintiff.

Williamson, Burleigh & McLean, of Augusta, for defendant.

SPEAR, J. This case is in the form of an action in assumpsit, upon an account annexed, and a quantum meruit, with a specification that the plaintiff would offer in proof of the latter count the items and charges enumerated in the account annexed.

The plea was the general issue. The defense offered was a special contract, and alleged breach thereof, and a deduction in damages therefor. The case was tried upon the theory: (1) That no claim for a deduction in damages could be made, under the general issue; (2) that the plaintiff could recover, regardless of any breach of contract, what the logs delivered were reasonably worth; (3) that the contract was fully performed.

It should be noted that a quantum meruit upon an implied contract and a quantum meruit upon a special contract originate and proceed to a judicial termination upon quite different grounds. A quantum meruit upon an implied contract is not founded upon a breach, but upon conditions and circumstances which the law says implies a promise on the part of the beneficiary to pay what in equity and conscience the services are reasonably worth. There is no fixed standard to which the value of the services may be referred for determination. On the other hand, a quantum meruit, upon a special contract, is founded upon the plaintiff's breach, and the contract price is the "standard by which the damages are to be estimated." Jewett v. Weston, 11 Me. 348. We must accordingly bear in mind, throughout this whole discussion, that we are dealing with a special contract.

A special finding was submitted upon the question of performance, and the jury found in favor of the plaintiff. This finding took care of the question of damages, provided the finding, upon the law and evidence, can be sustained; and of course settles the whole case. The essential part of the contract was as follows:

"Memorandum of agreement, between Boyd & Harvey Company and Blaine S. Viles, Augusta, Maine, parties of the first part, and the Kennebec Lumber Company, of Augusta, Maine, party of the second party, for an amount of fir logs to be cut during the winters 1914, 1915, 1916, 1917. Said Boyd & Harvey Company and Blaine S. Viles agree to sell to the Kennebec Lumber Company about four million (4,000,000) feet to be cut during the winter of 1914-1915, about five million (5,000,000) feet to be cut during the winter of 1915-1910, and about five million (5,000,000) feet to be cut during the winter of 1916-1917."

The plaintiff's action is not based upon this contract. His declaration does not mention it. In his action he relied solely upon recovering for the quantity of logs proved to have been actually delivered.

The plaintiff offered the contract. The defense then proceeded upon the theory that while the plaintiff may have delivered the quantity of logs alleged, he did so by virtue of a contract with the defendant, by winch he agreed to deliver a much larger quantity than was actually furnished, and that in consequence of such shortage of delivery the plaintiff was guilty of a breach of his contract, and the defendant was thereby subjected to damages. The first inquiry is: If there was a breach of contract, was the defendant entitled to show it, and claim the damages resulting therefrom under the plea of the general issue? Because if the defendant could not do this, under that plea, the only issue was the quantity of logs delivered, and their value. Furthermore, if damages could not be shown under the plea, it is evident that the contract and evidence of performance or nonperformance were admissible only upon the issue of good faith. But this issue was eliminated by the verdict, and we shall have no occasion to further allude to it.

The theory upon which the case was finally submitted to the jury is shown by the following extract from the judge's charge:

"The defendant has stated to the court during the trial, and he has urged it to you, that in arriving at that figure of what the plaintiff reasonably deserves to have, if you come to that, he is entitled to have you deduct the damages which the defendant has sustained by reason of the nonperformance of the contract. * * * I cannot give you that rule. * * * But the question for you to decide, if you come to that, would be how much the logs furnished by Mr. Viles this last season were reasonably worth, considering that the remainder, if any, were not furnished, and considering that some saw logs, if you find such to be the fact, were taken out? To put it another way, were the logs that he actually received worth any less because some were not furnished? Were they worth any less because some large trees were taken out, provided that the logs that were left came up to the specification? Not, you see, whether the defendant was left short of logs for his mill. That is not the question; but the question is, did, or does, the plaintiff deserve to recover under that quantum meruit clause if you come to that, for the logs which he did furnish in good faith under the circumstances disclosed in this case?"

By the use of the above language the defendant was denied any consideration for the shortage of logs for his mill on account of the breach of contract, and the plaintiff was permitted to recover what the logs which he delivered "were reasonably worth" without any regard to the breach. The shortage, in such a contract, might be very important.

As this case finally shaped up, it is therefore obvious that but two issues are before this court: (1) Was the defendant under its plea entitled to show a breach of contract and claim a reduction of the plaintiff's verdict by reason of damage, if any, it might have sustained on account of the breach? (2) Was the jury justified, under the law and evidence, in finding a special verdict of performance? The first issue presents a question of law. We think it should be resolved in favor of the defendant. It does not involve recoupment as a matter of pleading at all. The course of proceeding to have been pursued in the framing of the issues in the trial of this case is clearly mapped out in Jewett v. Weston, 11 Me. 316. The parties had entered into a special contract for the performance of certain work. The plaintiff brought an action upon quantum meruit. The court say:

"Having proved the performance of the labor, they might rest until this proof should be avoided by the defense."

How "should it be avoided by the defense?" This is the crucial inquiry, as it vitally concerns the matter of pleading. Was it by special plea, or brief statement under the general issue, which only was pleaded? Not at all. The court states how:

"It came out in evidence that the labor was performed under a special contract."

This is all that appeared. Nothing further was done or required by way of pleading. Yet the court say:

"As soon as it came out in the evidence that the labor was performed under a special agreement, the defendant might securely rest, until the plaintiff had removed this obstacle [the special contract] in one or the other of the modes above suggested."

The modes suggested were by proof of performance or of "deviation" by consent.

These three moves follow in logical sequence under the general issue. No recoupment was pleaded. The contract was not mentioned in any of the pleadings. As above stated, "it came out in the evidence." Yet the contract was admitted for the purpose (1) of "showing what the agreement was," (2) "as a standard by which the damages were to be estimated." Under the plea of the general issue, the court say in regard to the defendant's right to offset his damages, or recoup his damages, or deduct his damages (what you may call the method is immaterial), that—

"The contract price would be the rule in case the contract had been performed. But that not having been done, so much was to be deducted as the defendant suffered by reason of its nonperformance"—and cites Hayward v. Leonard (Mass.) 7 Pick. 181, 19 Am. Dec. 268, to which allusion will be further made.

It is further said:

"When a party engages to do certain work according to a specification, and does not perform it as specified, what he is entitled to is the price agreed upon, subject to the deduction of the sum which it would take to make it agree with the specification."

In other words, the plaintiff cannot claim the benefit of his breach of contract without assuming the accompanying loss. The benefit to the plaintiff and damage to the defendant are parts of one and the same transaction, and are necessarily put in issue in the plaintiff's own pleadings.

That case is based upon the theory, and establishes the practice, that, when a party is guilty of a breach of his special contract and sues on a quantum meruit, he must in his suit make the defendant whole, for damages suffered by the breach, as he is entitled to recover only what the value of his services have been worth to the defendant. "Quantum meruit" means "what he merits." Damages are in issue, not by plea, but by the nature of the plaintiff's action. The moment he brings quantum meruit on a contract, he acknowledges a breach, and admits notice that he may have damaged the defendant by such breach. Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. And the only object of a brief statement, under our present form of pleading, is to give notice of the defense to be made. The rules of special pleading were abolished and superseded by the general issue and a brief...