Schillo v. McEwen

Mr. Justice Scott delivered the opinion of the Court: This was an action of assumpsit, brought by plaintiffs to recover of defendant for cast and wrought iron work delivered for the Ewing Block, which defendant had undertaken to erect for the Ewing estate. The declaration contains only the common counts, to which defendant pleaded the general issue, and the Statute of Limitations applicable in'such cases. Plaintiffs claim their contract was with defendant to furnish a certain amount of iron to be used in and about the building, but defendant as confidently asserts he had no contract with plaintiffs. A large quantity of iron was furnished for the building, but not all called for by the contract, when the building was destroyed by fire on the 9th of October, 1871. After the fire the work on the building seems to have been abandoned by all concerned. There is no dispute that the largest portion of the items of iron work for which plaintiffs claim, was delivered in July and August before the destruction of the building. One of plaintiffs, however, testified that “ five thresholds were delivered on the 1st of October,” but in that he must be mistaken. The advanced stage of the building when it was destroyed, about which there is no controversy, shows conclusively all that kind of work was used long before that date. It is true, one of the plaintiffs, when recalled a second time, stated that the iron work delivered after the 1st of October were frames for prismatic lights. But as to these items the evidence is so conflicting the court was not warranted in believing that any iron work for any purpose was, in fact, delivered about the 1st of October previous to the destruction of the building. This action was not commenced until the 25th of September, 1876, and a period of more than five years having elapsed since the deliveryof any of the iron work, it seems the Statute of Limitations interposed would constitute a complete bar to the action. Even if it be conceded the frames for the prismatic lights were delivered within a period of five years, counsel does not, as we understand him, insist it is such a running account as would withdraw the other items of iron work from the operation of the Statute of Limitations. The right of recovery is not based upon a running account, nor upon any express contract, but upon an implied contract which counsel insists arose and took the place of the express contract on the 9th of October, 1871, when the express contract was abandoned on account of the destruction of the building in an incomplete state. Where the law affords a remedy in case of a partial performance of the contract, it is not upon the original contract, but it is upon the quantum meruit on an implied promise to pay so much as the material and labor were reasonably worth when delivered or accepted, as though no contract had ever existed. Bannister v. Read, 1 Gilm. 92; Webster v. Enfield, 5 id. 298. Had there been no special contract, the law would imply an agreement to pay for the iron work as delivered, and on failure to do so, an action would lie. The special contract having been abandoned, the effect is the same as if the materials had been delivered without any special contract. It is plain, if the original agreement was abandoned on the destruction of the building in an incomplete state, and before plaintiffs had fulfilled their contract, there could be no recovery for what was done, except upon an implied agreement to pay so much as the materials were reasonably worth, and evidently the Statute of Limitations will begin to run from the date of furnishing the materials. In this case no portion of the iron work, as we are authorized to believe from the finding of the court below, was delivered within five years befor.e the commencement of the suit, and hence the statute pleaded is a bar to the action. The judgment must, therefore, be affirmed. Judgment ajfirmed. Mr. Justice Walker : I am unable to concur in the doc- trine of this opinion. I hold a party must have a full and complete right of recovery for the full period of. the Statute of Limitations, before his action can be barred.