Cooper v. Bickford

The opinion of the court was delivered by Thompson, J. “It is certainly established,” said C. J. Gibson in Harris vs. Ligget, 1 W. & S. 361, “by the force of precedent, that where the plaintiff has performed a special agreement to do a particular thing, he may recover the stipulated price of it by an action of indebitatus assumpsit and use the agreement as evidence of the amount of compensation due.” And he might have added of the thing to be done. He cites many English and American authorities in support of the rule not necessary at this time to be referred to. There .is no room for doubt on this point. The admission of the agreement in evidence follows the rule as of necessity. The proper time for its introduction is with the party and the court. Being evidence, this court will not reverse on a question of order in which the evidence may have been introduced. These remarks dispose of the 1st and 3d assignments of error and sustain the court below in their ruling on the law as well as in admitting the evidence. 2. The second assignment is to the admission in evidence of the sealed agreements between Bickford and Pringle. These agreements were by the special contract to be delivered by the plaintiff below to the defendant. This was part of his undertaking, and he gave them in evidence as part performance of his contract. He had in fact assigned them by the terms of the contract, anql it was perhaps material for him to show their existence. He was not seeking to recover on them. If so, then [71] would the objection have ¿ad force in it, as the action was in assumpsit.. We see no error in this ruling. 8. We cannot discover any error in the answer of the court to the second point of the defendants. The plaintiff was to be paid his purchase money, as appears by the contract, as staves should be manufactured at the s¿op into shooks, not as purchase money of the staves, but for the business and contracts assigned. And it would seem a matter of no consequence where the staves were got. When they were manufactured into shooks the plaintiff was entitled to payment on his sale to the defendants to the extent of $20 per M., and to show the amount he was entitled to recover, he was bound to prove the amount of staves received at the shop's. Thus it was immaterial from whence they came. The defendants had the benefit of the contract of Bickford with Pringle for their manufacture, and were bound to pay as fast as the staves were manufactured. We might with great propriety have dismissed the exceptions to the answer of the court to the points, as the points themselves were not given in the paper book, other than as quoted in the charge of the court or in the assignments of error — but concluded to investigate the cause of complaint as far as we could without putting the party to the expense of another writ of error. We see no error in the record, and the judgments are affirmed. Judgment affirmed in both cases. See Bickford v. Cooper & Co., 5 Wright, 142.