Webster v. Enfield

• Decision Date: 31 December 1848
• Citation: 1848 WL 4161,5 Gilman 298,10 Ill. 298
• Parties: SAMUEL WEBSTERv.JOHN ENFIELD.
• Court: Illinois Supreme Court

5 Gilman 298

10 Ill. 298

1848 WL 4161 (Ill.)

SAMUEL WEBSTER

v.JOHN ENFIELD.

Supreme Court of Illinois.

December Term, 1848.

ASSUMPSIT, in the Warren circuit court, brought by the appellee against the appellant, and heard before the Hon. Norman H. Purple and a jury, at the November term, 1846, when a verdict and judgment were rendered in favor of the plaintiff below for $446.50.

So much of the evidence given on the trial in the circuit court and contained in the bill of exceptions as is material to the determination of the case, will be found embodied in the opinion of this court.

R. S. BLACKWELL, for the appellant:

1. Assumpsit upon a quantum meruit will not lie, where the parties have a sealed agreement, under which the labor was done, (the work agreed to be done being in part finished) though the plaintiff was prevented from fulfilling his undertaking by the defendant; but the action must be brought on the agreement itself. Young v. Preston, 4 Cranch, 239; Wood v. Edwards, 19 Johns. 205; Andrews v. Montgomery, ib. 162; Toussaint v. Martinnant, 2 Term R. 100-5; Codman v. Jenkins, 14 Mass. 95; 4 B. & P. 104; 1 M. & S. 573; 14 Mass. 93, 99; 5 Cowen, 195; Hawks v. Young, 6 New Hamp. 300.

2. Where there is a special agreement which has been fully performed, or where defendant has prevented a performance, plaintiff can not maintain a general assumpsit, if the agreement was to pay in property and not in money. Burlingame v. Burlingame, 7 Cowen, 92; Cochran v. Tatum, 3 Monroe, 404; Spratt v. McKinney, 1 Bibb, 595; Watson v. McNairy, ib. 356; 1 J. J. Marsh. 394; 3 do. 689; Clements v. Eslava, 4 Porter, 502; 5 H. & I. 45; 14 Johns. 326.

3. The omission of defendant to furnish such lumber as was required in framing the timbers for the mill was at most but a breach of the contract, and plaintiff has his remedy by action. It is not every breach of a contract which will authorize the party not in fault to rescind, and sue on an implied assumpsit for his labor, etc. It is only where the act of the defendant is such as necessarily to prevent the other party from performing his part according to the terms of the agreement. Selby v. Hutchinson, 4 Gilm. 332-3; 4 Wend. 289; 34 Eng. Com. Law R. 160; 21 do. 250.

4. All antecedent and contemporaneous verbal agreements, conversations, etc., are merged in the written contract. Lane v. Sharp, 3 Scam. 566-7.

J. MANNING, for the appellee:

1. Where there has been a contract, whether under seal or not, and it is partially performed by one party and he is prevented from completing the performance of his part by the default of the other party, he may treat the contract as rescinded, and recover the value of what he has done in assumpsit. Butts v. Huntley, 1 Scam. 410; Herrington v. Hubbard, ib. 569; Reed v. Phillips, 4 do. 40; Bannister v. Read, 1 Gilm. 100; 10 Johns. 36; 4 Wend. 290; Selby v. Hutchinson, 4 Gilm. 328.

2. It is argued that evidence concerning the time when Webster was to have his saw mill done was improperly permitted to go to the jury; but this, with the explanation of the judge accompanying it, was only evidence of what was a reasonable time within which Webster should complete his saw mill. And what is reasonable time may be a question for the jury to determine upon the facts of the case. 1 Starkie on Ev. 450, et seq. et in notis; Eaton v. Southby, Willes, 135; Bell v. Wardell, do. 202; 1 Starkie on Ev. 451, note (p); ib. 454, note (u); Hilton v. Sheperd, 6 East, 14, note; 2 Eng. Com. Law R. 152; 1 Starkie on Ev. 458-9; Joy v. Sears, 9 Pick. 4.

3. The bill of exceptions does not purport to set out all the evidence given in the case, and, therefore, a new trial can not be granted on the ground that the verdict is against the weight of evidence. Hall v. Rogers, 3 Scam. 5; Rowan v. Dosh, 4 do. 461; Bates v. Bulkley, 2 Gilm. 394; Granger v. Warrington, 3 do. 310; 2 J. J. Marsh. 123.

O. H. BROWNING concluded the argument in behalf of the appellant.

The Opinion of the Court was delivered by CATON, J.

The law is too well settled in this State to admit of discussion by this court, that when one party is guilty of a failure to perform his part of a special agreement, whether sealed or not, such a failure as prevents the other party from performing, the latter may abandon the contract, and bring assumpsit for what he has done under it, whenever that action might be maintained, but for the special agreement. Selby v. Hutchinson, 4 Gilm. 319; Bannister v. Read, 1 do. 100; Reed v. Phillips, 4 Scam. 40; Herrington v. Hubbard, 1 do. 969; Butts v. Huntly, ib. 413. Whether this action could be sustained depended upon the question of fact, whether the defendant had been guilty of such a violation of the contract, although, judging from the evidence sent up, we might be disposed to concur with the jury in their conclusion that the defendant was guilty of such violation, we are precluded from an examination of that question of the incomplete bill of exceptions found in the record. After setting forth certain testimony it proceeds: “And defendant avers that this bill of exceptions contains all the evidence offered or given on the part of the plaintiff to maintain the issues on his part. The evidence being closed, the plaintiff asked the court to instruct the jury,” etc. It is impossible for this court to determine understandingly, whether the facts were correctly found or not, unless we have all the evidence which was acted upon in the court below. There is no pretence that any is given here except that introduced by the plaintiff, and before we could say that the finding was unsupported by the evidence, we should have to determine, judicially, that nothing could have come from the defendant's witnesses, which could have supported the finding. Besides, the judge who tried the cause does not vouch for the truth of the averment, that all of the plaintiff's evidence is inserted. All that is affirmed by...