Suber v. Pullin

The opinion of the Court was delivered by Moses, C. J. It is assigned that there was error, on the part of the Judge below, in holding that a recovery could not be had under the common counts, because the parties had entered into a special contract. It is settled, beyond controversy, that where there is a special contract existing and in full force, a resort for the breach of it cannot be had to the common counts. — 1 Chit. Pl., 342; Power vs. Wells, Cowp., 818; Weston vs. Downes, Doug., 23; Raymond et al. vs. Bearnard, 12 Johns., 274; Clark vs. Smith, 14 Johns., 326. It proceeds upon the plain and well recognized prin--ciple that, if there is an express promise still existing, the party is precluded from a remedy founded on an implied one. The terms of a special contract express the conditions and provisions which the parties have prescribed for themselves. The implied obligation, which arises from the consideration, is substituted by the law in the absence of an agreement which declares the intent of those who are to be, respectively, bound by its terms. Where, therefore, one undertakes either to do specific work, or deliver goods, he is held to his assumption according to the true meaning of his contract, and this is to be ascertained by an action on the agreement itself. If, however, it has been rescinded, either by mutual consent or by the act of one of the parties, and a right to compensation has accrued to the other of them by reason of part performance, such right may be enforced through the common counts. It is not to be understood that a recision of the contract can only be effected by words, or direct notice, indicative of that purpose; but any act, by the one or the other, which necessarily prevents the performance of the mutual undertaking, will amount to an abandonment. Wherever the conduct of either can be viewed in no other aspect than as a relinquishment of the contract, it is to be regarded as rescinded, and the party against whom the breach has thus been made may avail himself of the common counts. The remedy is accorded to him because he has been prevented from completing his undertaking by the direct interposition of - the other party. [278] To sustain these positions reference may be had to what is said by Buller, J., in Towers vs. Barret, 1 T. R., 136; to Gillett vs. Maynard, 5 Johns., 86; Dubois vs. Delaware and Hudson Canal Company, 4 Wen., 285; and to our own cases of Rye vs. Stubbs, 1 Hill, 384; Martin vs. Howel, 2 Tr. Con. Rep., 750; Stent vs. Hunt, 3 Hill, 223; Bradshaw vs. Branan, 5 Rich., 466. By the agreement, the defendant was the purchaser from plaintiff of certain iron railing and tombstones, which he was to send to Hope Station, and pay the expenses therefor. The defendant was to haul the materials to the place of erection, but the plaintiff was to set up the same, if the foundation was completed when the articles were delivered. The price to be paid by the defendant for the materials, and setting them up, was $550. The evidence proved that the stones and iron railing were sent by the plaintiff to the station, and notice thereof given to the defendant; that the plaintiff, after this, called on him several times to remove the articles to the graveyard, and prepare the founda-' tion, with neither of which requests did he comply. Under these facts, it is clear that his neglect or refusal prevented the plaintiff from completing the contract, on his part, according to its intent; and, unless he can recover in this form, he would be without remedy for the value of the materials he furnished, and the work and labor he bestowed to place them in the condition essential to the purposes for which they were required by the defendant. His failure to pei\-form the agreement, on his part, which was necessary to the complete fulfillment of all the stipulations required of the plaintiff under it, amounted to an abandonment of the contract by the defendant. He contends, too, that if the special contract was waived, the plaintiff cannot recover, by reason of the 17th Section of the Statute of Frauds. It might be sufficient to say that the verdict could be sustained on the demand for work and labor, and this would prevent the objection growing out of the statute. The contract was in writing, and was offered in evidence as a standard by which the measure of damages was to be regarded. If it had existed only in parol, the exception -would not have been well taken. ■ The prominent articles to be furnished by the plaintiff were gravestones, of stated dimensions. He was to inscribe upon them at least the name and the date of the birth and death of the several deceased to whose memory they were to be dedicated. [279] They were not tombstones at the time of the agreement, and work and labor were to be bestowed upon the marble by the vendor to constitute them the articles demanded by the defendant. The work, and labor are to be regarded as indispensable parts of the contract. The whole subject is fully considered in the case of Bird vs. Muhlinbrink, 1 Rich., 199, which holds such an agreement not within the Statute of Frauds. The judgment of the Court below is affirmed. Willard, A. J., concurred.