Carey v. Hughes

PARSONS, J. The evidence does not conclusively show what the contract was. It is more than probable that no actual contract had been made between the parties about the ditching, up to the time when according to the deposition of Mr. Amos the plaintiff below, Hughes, came to commence the work. The parties must have conversed about such a contract, because Carey instructed Amos, who was his overseer at the time, not to let Hughes commence the work of ditching unless he would warrant his work. When Hughes came to commence the work and Amos had told him of this requisition of Carey, Hughes said he would warrant his work, and commenced. It is to be presumed from this that no perfect contract existed previously. It appears from some of the evidence that Carey was to pay five cents a yard for the ditching. This must have been mentioned between the parties previously as one of the terms of the proposed contract, and there was no difference between them, it is to be presumed, about it. It does not appear that Hughes undertook to cut the ditches any particular depth or width. These were remarkable omissions in such a contract, unless the contract were such as to render any stipulations about the depth and width of the ditches unnecessary. If Hughes contracted to cut such ditches as would effectually drain the land of Carey, then such stipulations were not only unnecessary but they would have been inconsistent with the nature of the contract. The parties had a right to make their contract in this respect as they thought fit, but the contract as made, as well as its subject matter, will be looked to in the attempt to ascertain what the parties intended. The question is whether Hughes was to warrant that his work, of some particular kind and quantity, was to be done in a workmanlike manner, or that it should be such as to drain the land. Upon this question the omissions are obviously material, as they tend to show that the ditching was to be such as to drain the land. The record contains other evidence showing, or tending to show, that this was in truth the contract of the parties, but it is not necessary to state it. One of the charges of the court was as follows: “If the jury believed there was a contract between the parties, and the plain [391] tiff by said contract agreed to warrant his work, that they had a right to infer that he thereby only intended to warrant that the same should be done in a workmanlike manner and not that it should drain said land, and if they belieyed that the work was done in a workmanlike manner, that then they must find for the plaintiff.” It is our opinion that in reference to the evidence that was before the jury, it was error to charge that the jury had a right to infer that Hughes only intended to warrant that the ditches should be done in a workmanlike manner and not that it should drain the.land, for such an inference was against all ilie evidence. The charge next given, taken with its qualification, cannot be considered as having fully cured this error. There were other charges, as to which we need give no opinion. Let the judgment be reversed and the cause remanded.