Polsley & Son v. Anderson

Paule, Judge: An action of assumpsit was brought by- the plaintiffs] D. Polsley & Son, who were attorneys at law, upon the following article of agreement, to-wit: “An article of agreement made and entered into between Lewis Anderson of. the first part, D. Polsley & Son, and W. H. Tomlinson of the second part, witnesseth: That the said Lewis Anderson has instituted a suit in equity in the circuit court of Mason county for the specific performance of a contract for fifty acres of land, entered into between the said Lewis Anderson and John Anderson, in his lifetime; said suit is against the heirs of said John Anderson-. Now, therefore, it is agreed that the said Polsleys and Tomlinson are to receive, for theirlegal services, one. hundred dollars, each, certain, and if the said suit is decided in favor of the said Lewis Anderson, then the said Polsleys and Tomlinson are to receive from said Lewis Anderson, three hundred dollars, each, in all six hundred dollars.’^ The declaration contains four counts : the first and .fourth — 210 — bemg substantially the same, set forth the contract or its and after alleging that the plaintiffs commence<^ sa^ sui t, were diligently prosecuting the same, do further allege, that the said defendant, Lewis Anderson, caused said suit, without the consent of the plaintiffs to be dismissed from court, and did thereby hinder and prevent the said plaintiffs from prosecuting said suit to a final decision, in consideration whereof the said Anderson undertook and promised to pay said plaintiffs the said sum of $300, &c. The second and third counts are the common counts for work and labor, care and diligence of the plaintiffs about the business or suit, of said defendant, and upon an account stated. A demurrer was entered to the declaration and to each count thereof: This demurrer was overruled by the court, and on the trial one instruction was asked by the appellant, Anderson, the defendant in the court below, to the effect, in substance, that the dismissal of the suit did not, necessarily, entitle the plaintiffs to the recovery of the contingent fee referred to in the contract, which instruction was refused. Four instructions were asked by the appellees, the plaintiffs in the suit below, (all in substance the same) to the effect that the plaintiffs having been prevented by the act of the defendant and without their consent, from performing the condition precedent contained in the contract, that then the plaintiffs were entitled to recover the same amount as they would have been, if the condition had been performed. These instructions we íe given by the court. It is obvious that the chief question presented for our consideration, under the declaration and these instructions is this: What is the measure of recovery to which the plaintiffs were entitled ? Such is the endless number and variety of subjects, and so manifold are the interests to which contracts are applied, while so many equitable considerations so often attend, either their failure or their execution, that it has been found exceedingly difficult, in practice, to establish any one rule which — 211 — shall be of uniform and universal application; in this view the question may not be regarded as wholly free from all difficulty. This is simply a case of an alleged violation of contract, without any oppression, fraud or malice calling for exemplary damages. In all this class of cases, it is the object of our English and American systems of law to give compensation to the party injured for the actual loss sustained. This compensation is furnished in the damages which are awarded according to established rules; and these rules form what is called the measure of damages. “It is a natural and legal principle,” said Shippen, chief justice of the supreme court of Pennsylvania that the compensation should be equivalent to the injury.” “The general rule of law,” said Story, j., is this: “Whoever does an injury to another,is liable in damages to the extent of that injury. It matters not whether the injury is to the property or the person, or the rights, or the reputation of another.” But in forming a proper idea of legal compensation, it must be remembered that in cases of contract, as a general rule, the law regards only actual pecuniary loss directly sustained, disregarding indirect pecuniary loss, the value of time and expenses incurred in litigation, and taking no notice whatever of the motives of the defaulting party; that whether the engagement be broken through inability or design, the amount of remuneration is the same. Sedgewick on the Measure of Damages, 26, 27, 33 and 34. Wisely, therefore, the law has not attempted to secure what; (from the nature of the case) is impossible to men, a perfect rule of compensation. Speaking upon this subject chief justice Marshall says : “It would be going a great way to subject a debtor who promises to pay a debt, to all the loss consequent on his failure to fulfil his promise. The general policy of the law does not admit of such strictness; and although, in morals, a man may justly charge himself as the cause of — 212 — any loss occasioned by the’breach of his engagement, yet the course of human affairs, such breaches are so often occasioned by events which were unforeseen, and could not easily be prevented, that interest is generally considered as compensation which must content the injured.” Short v. Skipwith. 1 Brock., 103-114. With the expression of these views of the nature and extent of compensation, which the law contemplates in furnishing a remedy for the breach of a contract, we observe, secondly, that as a general and important rule, the contract, itself, furnishes the measure of damages. “But this rule is also qualified, says Mr. Sedgwick in his work on damages, and when it is said that the contract furnishes the measure of damages, .it is not thereby meant that the party, ready to perform his contract, will be able to recover of the party in default the entire price named in the agreement. On the contrary, it has been held, in many cases, that in actions for breach of contract, the measure of damages is not the price stipulated to be paid on full performance but the actual injury sustained in consequence of the defendant’s default.” The doctrine as . .thus stated is sustained and illustrated in the case of Chamberlin v. McCallister 6 Dana (Ky.) 352. It was there held that a plaintiff contracting to do work for a stipulated price and who is ready to perform his agreement, but. is prevented by the other party, cannot recover the price named in the contract for the whole work, but only the actual damages sustained by him. Says chief justice Robertson, “if the conduct of the plaintiffs excused the defendants in error for. their non completion of the entire job they had covenanted to perform, and entitled them to an' action, still the proper and only legal criterion of recovery was, in our opinion, the actual damage they had sustained and not necessarily the whole price to which they would have been entitled, had they, without prevention or obstruction,, plastered according to .contract, the three houses.”-:-“There is no reason for it;, and,, in our judgment there is no authority, which, when — 213 — rightly understood and applied, will sustain such a pretension. Did they sustain any damage ? Then they were entitled to recover to the extent of that damage but to no greater extent.” This was in 1838. Again in 1845, the supreme court of New York made the following decision in the case of Clark v. Marsiglia, to-wit: “The measure of damages against a party who has employed another to do certain mechanical work, at a price agreed upon and who has countermanded his directions and forbidden the further execution of the work, after it had been commenced, is not the whole amount agreed to be paid, but a just recompense for such injury as the party employed has sustained on account of the breach of the agreement. The party, so employed, has no right to proceed with the work after such countermand.” The court say, “the plaintift was allowed to recover as though there had been no countermand of the order; and in this the court (below) erred: The defendant by requiring the plaintiff to stop work upon the painting, violated his contract, and thereby incurred a liability to pay such damages as the plaintiff should sustain. Such damages would include a recompense for the labor done and materials used, and such further sum in damages, as might, upon legal principles be assessed, for the breach of the contract; but the plaintiff had no right, by obstinately presisting in the work, to make the penalty upon the defendant greater than it otherwise would have been.” After some further illustrations of a pertinent character, the opinion concludes as follows : “In all such cases thé just claims of the party employed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexe-cuted ; and to persist in accumulating a larger demand is not consistent with good faith towards the employer.” 1. Denio (N. Y.) 317. In the same volume in the case of Wilson v. Martin 602, and Spencer v. Halstead 606, the same doctrine is established. See also Shannon v. Comstock 21 Wendell (N. Y.) 457. The same doctrine is — 214 — also held by the supreme court of appeals of Indiana the case of Jones v. Van Patten 3 Ind. 107. In the foregoing cases the contracts were absolute for work and labor and specific sums agreed upon. The principle of these cases appears to be entirely applicable to the case now under consideration and applies possibly with greater force; for here the contract being conditional, it does not necessarily follow that the plaintiffs ever would have been able to have performed the condition, even if they had not been prevented by the act of the defendant. In opposition to these principles, we are cited to the case of Hill v. Cunningham, 25 Texas, 31. In this case it was held that where an attorney contracted for a contingent fee to depend upon the result of the suit, and the client compromises the suit, -without the consent of the attorney, he will be entitled to recover the whole amount of the fee in like manner as if the contingency had transpired upon which the payment of the fee was made to depend. The court, in this case, we observe, has simply and briefly expressed its opinion, without stating any grounds or reasons upon which the opinion is founded, and without reference to any. authorities whatever ; but does add, however, that the rule as thus announced cannot be without exceptions. In the case of Hunt v. Test, 8 Ala., N. S. 713, the same rule is announced by the supreme court of that state; but it is worthy of remark that the only question which seems to have been argued and considered by the court was whether a contract to solicit the passage of a private law by Congress was valid: and it was held that it was, and the party entitled to his stipulated compensation where the claim had been compromised. We are constrained to adhere to the general doctrine, as stated in the principles and authorities hereinbefore cited, as furnishing a safer and juster rule for measuring the recovery for the breach of such contracts. In the light of these views and principles we think the court erred in giving the instructions asked for by — 215 — the plaintiffs, D. Polsley & Son, and did not err in fusing to give the instruction asked for by the Anderson, to-wit: that proving that they (the plaintiffs) had dismissed said suit, at the instance of the defendant Anderson was not, in law, equivalent to a decree in his favor. Nevertheless the plaintiffs are entitled to recover for the time, work, labor, care and attention bestowed by them, on the business or suit of the defendant, to the extent of their loss or injury, as established by legal rules. Can this recovery be had under the present declaration ? It contains the common quantum meruit count; and it is said where the non-performance of the contract arises, not from any failure, on the part of the plaintiff, but from some act of the defendant, who absolutely refuses to perform or renders himself incapable of performing his share of the contract, the plaintiff may rescind the contract and sue at once on a quantum meruit for what he has done. This was decided in a case where the plaintiff had been engaged by the defendant to write a treatise on costumes and ancient armors, to be published in the Juvenile Library: When a certain progress had been made in the work the defendants abandoned the publication for which it was intended. The declaration contained a count for work and labor, upon which it was held that the plaintiff might recover upon the principle above stated. 8 Bingh. 14; Mayne on Damages, 155. But we think also that the first and fourth .special counts which set forth the contract and aver the readiness of the plaintiffs to perform the condition precedent and their prevention of so doing by the act of the defendant, are sufficient to maintain the action. In the case of Chamberlin v. McCalister, 6 Dana (Ky.) before cited, justice Robertson says: “We are rather inclined to the opinion that though the offer and refusal, in such .a case, should not be deemed equivalent to actual performance, according to contract, so far as the criterion <of recovery might be concerned, yet as it would show legal excuse for non-performance of a precedent condi — 216 — tion; it might dispense with the averment of performance> which, otherwise would be necessary, in a declaration, and that thus an action might be maintained on the covenantor, in this case, on the contract. These-counts may be regarded as, properly, setting forth a legal cause of action upon the contract, the extent of the-recovery to be controlled by the court, by its instructions, as if the same were upon a quantum meruit. The judgment of the court, entered in. this cause on the 30th day of May, 1871, is reversed with costs to the-appellant, and the verdict of the jury set aside, and this-cause is remanded to the circuit court of Mason county for a new trial in accordance with the principles here-inbefore expressed. HaymoND, President, and HOFFMAN, Judge, concurred. Moore, Judge, did not sit on the hearing of the-cause. Judgments.. ,ürsed, Verdictof Jury Set Aside,, AND Cause RemaNded.