Yeats v. Ballentine
| Decision Date | 31 March 1874 |
| Citation | 56 Mo. 530 |
| Parties | THOMAS M. YEATS, et al., Respondents, v. WILLIAM BALLENTINE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
John P. Hudgens, for Appellant.
I. The plaintiffs could not recover on their petition in general indebitatus assumpsit, after admitting the existence of a contract. (8 Mo., 118; Id., 517; 21 Mo., 73; Stout vs. Tribune Co., 52 Mo., 242; 37 Mo., 317; Id., 307.) Yet, while the record shows, and the plaintiff swears, that all the work sued for was done under the contract, they have intentionally stated a different cause of action in their petition, to avoid an issue on the contract, and have recovered on the contract, the full contract price with 6 per cent. interest from the commencement of the suit to trial, without any reduction.
The object of the plaintiff's pleading was to take from the defendant the protection guaranteed by the contract. Defendant was not a plumber and knew nothing of the business. Hence, he provided in the contract with plumbers, that the work should be done according to plans drawn by the architect and to the satisfaction of the architect and City Inspector of Plumbing. He had a right to make this condition, and plaintiffs voluntarily accepted them and they have no right, as long as defendant stands by and insists on the contract, now to waive them nor ignore them.
In Clarke vs. Watson, referred to in Longdell's Select Cases, p. 602, in a similar case it is said: &c.
So, in this case, it is an attempt to take from defendant the protection of his architect and the City Inspector, and substitute for their judgment of the value and sufficiency of the work, the opinion of a jury. Defendant made no such contract.
When work is done under a special contract, the party doing it must comply with the terms of his agreement before he can recover anything, unless prevented from doing so by the act of God or of the other party. .)
Defendant's building cost him $75,000, and the court in effect says, that if he occupied his building he must pay for plaintiff's work, whether he accepted it or not. This is not the law. (17 N. Y., 185; 18 N. Y., 185-189; 2 Wal., 1; 19 How., 224.)
There must be voluntary acceptance of part performance to make defendant liable, and the occupation of house upon which work is done is not voluntary acceptance. (17 N. Y., 173; 24 Penn., 314.)
If the acceptance was involuntary, or was compelled only by the necessity of the case, or the defendant's wishes to retain property of his own to which the plaintiffs' work was incident or a necessary adjunct, there is no right of recovery. (Sedg. on Dam., [4 Ed.], pp. 244-9 and n.; 49 Mo., 523, affirming 29 Mo., 99.)
Voorhis & Mason, for Respondents.
I. There being no error of law, and the jury being the sole judges of the facts in this case, this court cannot disturb the judgment of the court below.
II. The old and rigid rule requiring the contract to be wholly performed before any recovery could be had, has been relaxed, in conformity to the rules of justice and common sense. The party who receives what is done for his benefit must respond in compensation to the extent of that benefit. The acceptance and use of the work and materials by the appellant are not controverted. (2 Pars. Con., 522; Thompson vs. Allsman, 7 Mo., 530; Dutro vs. Walter, 31 Mo., 516; Williams vs. Porter, 51 Mo., 441.)
III. The appellant does not deny, and cannot deny, indebtedness for the work and materials. He has accepted them, and has ever since used them to his exclusive benefit.
IV. The arbitrary clause inserted in the written contract, “work to be done to the satisfaction, and to the entire satisfaction of Osborne or owner,” put it always in the power of an unscrupulous owner to say that the work was not to his entire satisfaction, so that he could plant himself upon unsubstantial objections and bid defiance to any recovery.
V. Under the law of this State, plaintiffs' right to abandon the contract and resort to assumpsit upon quantum meruit is unquestionable.
The plaintiffs in this case are plumbers, and brought this suit to recover from defendant the value of materials and work done on defendant's house. There were two counts in the petition, but as there was no dispute about the second count, it is unnecessary to notice it.
The defendants set up in their answer to the first count, that the work was done under a special contract, by which plaintiffs agreed to do the work according to certain plans and specifications, and at a fixed price for the aggregate job, and that the work was to be done to the satisfaction of the defendant and his architect, and the city inspector. The answer avers that the work was not done according to contract; that neither the architect or city engineer or defendant approved of it--and that in various important particulars, it was a very bad job. A counter-claim for damages, by reason of the breach of the contract, is then set forth. Upon the trial, there was evidence, on the one hand, to show that the work was well done and the prices reasonable and usual, and on the other hand, that it was very badly done, and totally unfit for the large and costly establishment in which it was placed. The architect, especially, pointed out a great variety of bad work, unsuitable materials, and work that did not come up to the specifications of the contract, in which he was supported by the city inspector. The defendant, not professing to be a judge of such work, left the matter to his architect, and declined paying, upon the ground that the architect was not satisfied.
It appears that the defendant moved into the house, which cost $75,000 or thereabouts, during the progress of the work of plumbing; and that he objected occasionally to certain parts of the work, which, however, were accordingly altered to suit his suggestions; that he, of course, continued to live with his family in the building after the work was completed, and made use of the various water pipes and other appurtenances and conveniences put up in the building by plaintiffs.
The court instructed the jury for plaintiffs, that if they found that the work and labor charged was done, and the materials furnished, and that the defendant used and possessed and enjoyed the same, and still is in the possession and enjoyment of the same, they would find for the plaintiffs on the first count, notwithstanding the failure to comply with the special contract, and assess their damages at the real value of the work and materials, as shown by the evidence before them, being governed by the contract price of $950 for the aggregate, as the standard of value; and if any work required by the contract was not done, or was done in an imperfect manner, a proportional deduction should be made from the contract price. The jury were directed to allow interest at 6 per cent. from the time suit was commenced.
In regard to the counter-claim of defendant, which set up the breach of the special contract, and claimed damages therefor, the court instructed the jury, that if they found plaintiffs had not complied with the specifications of the contract read in evidence, they would assess the damages for such breach at such sum as they believed from the evidence he had sustained.
Several instructions were asked by defendant, but they were based upon a view of the law, which will be hereafter considered.
The jury found for the plaintiff on the first count, $1121--and in regard to the counter-claim, found for the plaintiff. On the second count, about which there was no controversy, the finding was for $121.60. Altogether, the plaintiff's damages were assessed at $1342.60. There was a judgment accordingly, which was affirmed at the General Term by a divided court.
We find, in Parsons on Contracts, Vol. 2, part II, § 5, a brief summary of the legal theory on which this case was tried. It is as follows: * * * ...
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...exceeding the contract price, less such damages as have resulted to the other contracting party from the bread, of the contract. Yeates v. Ballentine, 56 Mo. 530; Eyermann v. Mt. Sinai Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313. Under the issues made by the informal pleadings of......
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...the contract price, less such damages as have resulted to the other contracting party, from the breach of the contract. [Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Sinai Cemetery Assn., 61 Mo. 489; Davis v. Brown, 67 Mo. 313.] Under the issues made by the informal pleadings of the parties,......
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