Hauptman v. Catlin

By the Court. Woodruff, J. I think this report should be set aside. The amount found due by the referee seems to me greater than is warranted by the evidence. That, however, would be no ground for ordering a new trial, if it rested simply upon the weight of the evidence, or upon the credibility of the witnesses. But where a painter or other person is employed to perform work, he is entitled to recover, not what he pays his workmen, with a per centage thereon, but quantum meruit, and as to the materials furnished, quantum valebant. Now, if entries in the plaintiff’s books are to be deemed, when the books are properly proved, prima facie evidence, how is a defendant, in any case, to show, that time was needlessly wasted in or about the work, and that the fair value of the work is less than the aggregate charges in the plaintiff’s books ? Obviously, by submitting the work to the inspection of experts, and proving its fair value. If he may not hope to attain justice in this [735] mode, then an employer is at the mercy of the employee, unless he takes the unusual and extraordinary means to protect himself, by setting a watch over the work, to take note of the time, materials, &c., and especially to mark the industry or idleness of the workmen. This mode of proof was, however, permitted to the defendants ; and I repeat, as before, that had the referee simply decided the amount upon his judgment of the credibility of the witnesses, or of the weight of the evidence, we could not interfere upon this ground. But he did not. The defendant had proved the value of the whole work by some witnesses, and was proceeding to call others, when he was stopped by the referee, upon the ground that it was unnecessary and useless to accumulate, to any further extent, testimony of experts as to the value of the work done. This must have been on the ground, that the value of the work was proved by sufficient evidence to be, as it was claimed to be by the defendant. Or, on the ground that the entries in the plaintiff’s book were so conclusive, that no amount of evidence which could be furnished by the opinions of experts, who examined the work, could overcome it. If the suggestion of the referee was based upon the former, then his finding is a direct contradiction of the suggestion. If upon the latter, then it was erroneous. It is true, that no exception is found in the case, founded in this precise objection; but this goes very far to sustain the claim that the report is far too much, and that injustice has been done. The defendants, I think, had a right to assume that the referee was satisfied by the proofs he had given. But it appears by the result, that no amount of such evidence would have availed to satisfy him, when opposed by the entries in the plaintiff’s book. A mere suggestion by the court, that no further proof was necessary, (upon which the party was not bound to act, and upon which, in some degree, he acted at his peril,) would not, of itself, be a sufficient ground for reversal; [736] but it may guide our discretion when we deem the finding of the referee against the weight of the evidence. In 7 Cow. 29, the suggestion came from the judge, as a mere opinion. Here it came from the referee, who was both judge and jury. I do not perceive how Mrs. Catlin, a feme covert, is liable at all in this proceeding. She could not contract for the erection of the building; and I am by no means satisfied that' she could, by any contract, subject the building to a lien, except by a pledge of some sort, (by mortgage or otherwise,) in writing duly acknowledged. Certainly, she could not bind herself personally; and yet this judgment is against the defendants jointly, and binds them personally, and also orders a sale of the building. Surely no joint contract is proved; and if Mrs. Catlin is liable at all, then her husband is not liable jointly with her.