Curtis v. Smith

The opinion of the court was delivered by Ross, J. In the action of-assumpsit on the common counts, it is as necessary for the plaintiff to prove the declaration as it would be if he declared specially. He cannot recover on the common count for work and labor done and performed, without [120] showing that he has performed work or labor for the defendant, at-‘his request, either expressed or implied. Neither can he recover on the count for materials furnished, Without showing that the materials, in whole or in part, have gone to the benefit of the defendant, upon a like request. If the plaintiff has performed labor on his own material under a contract to furnish the defendant a specific article or perfected work, the combined result of his labor and such material, but which has never gone to the benefit of the defendant, he cannot recover therefor on the common counts for labor done and performed and for materials furnished. The labor which the plaintiff has performed in such a case, he has performed for himself, on his own material, in order to produce the article or perfected work which he has contracted to deliver to the defendant. If the completed work is not delivered so that the defendant receives a benefit from it, the plaintiff, by his work and material, does not lay the foundation for a recovery under the common counts, however wrongfully the defendant may have prevented the completion and delivery of such perfected work. In such cases the plaintiff’s remedy is by declaring specially for damages sustained by the wrongful act'of the defendant in breaking the contract by preventing the completion and delivery of such perfected work. These are laid down as elementary principles 'in the text-books, and have reached the sanction of many decided cases. 1 Chitty Pl. 347, 348, 349; Allen v. Thrall, 36 Vt. 711; Walker v. Clark, Windham County, February Term, 1873; Atkinson et al. v. Bell et als. 8 B. & C. 277 (15 E. C. L, 142.) The application of these principles to the facts stated in the exceptions, renders it manifest that the court should have complied with the defendants’ request in regard to the plaintiff’s right .to recover the second item of his specification under the declaration. The plaintiff had contracted to put in certain wing walls around the bakery of the defendants, at a specified price per yard. Before the time arrived for the plaintiff to commence putting in the wing walls, the defendants notified him not to proceed under the contract, and thereby terminated it. Tne plaintiff gave evidence which satisfied the jury that before he received the notice terminating the contract, he had done work in quarrying stone to [121] be used in building the wing walls. The stone were not quarried on the land of the defendants, and they received no benefit therefrom. The court allowed the plaintiff to recover for this labor under the common count for labor done and performed. In this we think there was error. The defendants did not contract with the plaintiff for this labor, but for the wing walls completed. The plaintiff, in quarrying stone from his own quarry, was not at work for the defendants, but was at work for himself, getting out material that he might or might not use in the erection of the wing walls. The stone whéu quarried belonged to the plaintiff, and he could put them to any use he saw fit. The plaintiff had performed no labor for the defendants, or that had enured to their benefit under the contract. At most, he had only performed labor with the expectation that he could make it available in enabling him to perform his contract with the defendants. The gravamen of his complaint as developed in the .evidence, is, that he has not been allowed to realize this expectation by reason of the act of the defendants in wrongfully terminating the contract. If he would recover for this, he should declare upon the contract specially, and for the breach thereof of which he now complains. We think, also, there was error in the charge of the court on the subject of damages, if the declaration had been special. The court allowed the plaintiff to recover the value of his labor in quarrying the stone. This would be an element to be considered, in ascertaining the damages. The rule of damages in such cases, is the amount that the plaintiff has lost by the defendants’.wrongful termination of the contract. If the stone when quarried were of no pecuniary value, then the plaintiff would have been damni-fied to the full extent of the loss of his labor in quarrying them. It does not appear from the exceptions that they were when quarried, entirely valuless. For aught that appears, they might have been worth enough more than when in the quarry, to have fully compensated the plaintiff for his labor. If so, he suffered no damages in this particular by the defendants’ wrongful termination of the contract. The defendants claim that the court erred in allowing the plaintiff to recover any damages on this item, because they claim that [122] by the contract the plaintiff was not to commence on the work till after the stagings around the building should be taken down, which was not done till after they gave him notice terminating the contract. If the exceptions are to be construed as thus claimed by the defendants, the plaintiff, under a proper declaration, could only recover the excess of the contract price above what it would have cost him to have performed the contract. From the statement in the exceptions, we do not think that it is entirely clear that the plaintiff, by the contract, was restricted from commencing quarrying stone till the stagings then around the bakery should be taken down. It might apply only to the time when he was to commence the erection of the wing walls. We are not prepared to say that the court erred in submitting to the jury to be found whether the plaintiff, by the contract, was warranted in quarrying the stone at the time his evidence tended to show he did it. If the printed extract from the charge contains all the instruction which the court gave the jury on this question, we should think that further instruction was necessary to properly submit this point in the case to their consideration. As this was not the point to which the defendants’ request was directed, and as only so much of the charge is given as related to the request, we cannot presume that further instruction was not given on this point. Judgment reversed, and cause remanded.