Simmons v. Jaselli

Mr, Chief Justice Shepard delivered the opinion of the Court: 1. The objection to the introduction in evidence of plaintiff’s copy of the contract is technical, and the court did not err in permitting both copies to go to the jury. The recitals in the body of the contracts show that they were made with E. Jaselli & Brothers, and both should formally [have] been signed by E. Jaselli & Brothers. Whether the contract was made with E. Jaselli & Brothers, and whether E. Jaselli alone was the party, or whether he had partners, were questions for the jury to determine. 2. There was sufficient evidence to go to the jury on the issues of contract, partnership, and to the amount and character of the work done under the contract, and there was no error in refusing to direct a verdict for the defendant. 3. The special instruction to the effect that if, at the time of doing the work, the plaintiff had a partner or partners who were interested in said work and entitled to share in the profits thereof, he could not recover in this action, was refused and error is assigned thereon. Passing by the question whether the instruction was strictly applicable to the question of the contract, any error in its refusal was cured by the general charge. In that, the- court stated the law defining partnership, and then told the jury that if there was a partnership between plaintiff and [249] bis alleged partners, and the contract was with said partnership, the plaintiff was not entitled to a verdict, because of the nonjoinder of said parties. 4. The court went farther than stated above, and in conclusion told the jury that if there was a partnership in fact, and they should find that the contract was made with the plaintiff alone, or in his own name, then if the work had been done according to the contract, and properly done, they should find for the plaintiff. This was excepted to specially. The contract was not executed under seal, and there was evidence tending to show that it was made with plaintiff alone, and that all communications respecting the same were with him, and all payments made to him. These facts, if true, entitled plaintiff to sue in his own name. If he had agreed to make the other alleged members of the association sharers in the profits arising from the contract, they did not therebyhecome parties to the contract and necessary parties plaintiff. Law v. Cross, 1 Black, 533— 537, 17 L. ed. 185-187; The Potomac (Simpson v. Baker) 2 Black, 581-584, 17 L. ed. 263, 264. There was no error in the charge. 5. Error is assigned on the refusal of the following special instruction prayed by defendant: “The written contract for the work in question in this cause is dated July 30, 1909, and provides that the work should be begun at once and completed within thirty (30) working days, and further that if the work should not be completed within that time, the contractors should forfeit to the owner the sum of tollm peí toy ic® fetoa toy imlwtong Smtoys, ttot the work should remain unfinished. The jury are therefore instructed that if they shall find from the evidence that the work was not completed on or before September 3, 1909, they should allow to the defendant from the contract price, $10 per day for each day, Sundays included, after September 3d, that the work remained unfinished.” It is contended by the appellee that the language of the contract, providing for a forfeiture upon failure to complete the contract within the time fixed, cannot be regarded as an agreement [250] or settlement of liquidated damages; that the term “forfeiture” imports a penalty. In support of this contention are cited Van Buren v. Digges, 11 How. 461-467, 13 L. ed. 771-774, and other cases reviewed in Sun Printing & Pub. Asso. v. Moore, 183 U. S. 646-663 et seq. 46 L. ed. 366-378, 22 Sup. Ct. Rep. 240. It is not necessary to decide this question. The only plea of defendant was nonassumpsit. While a wide range of defense is permissible under the general plea, apparently including payment, release, etc., it has never been extended to matters of set-off. The claim that defendant is entitled to liquidated damages under a provision of the contract stipulating therefor in case of delay, is an independent matter of defense recoverable by way of set-off, and, to be entertained, must have been pleaded. Code, sec. 1563; Langston v. Maitland, 11 Grill & J. 286-297; 1 Poe, PI. & Pr. sec. 609. There was no error in refusing the instruction. 6. Error is assigned on the Court’s refusal to give the defendant’s third special instruction, to the effect that the agreement provided that the price was to be paid when work was completed to the satisfaction of defendant; that while this would not permit an arbitrary or unreasonable rejection of the work if done in substantial compliance with the contract, and in a first-class manner, yet if the evidence showed that the work was not a first-class job, so that defendant had a right to be dissatisfied therewith, plaintiff is not entitled to recover. The court in the general charge told the jury that if the work had been done, as agreed on, properly, the plaintiff would be entitled to recover the amount found to be unpaid. If the work was defectively done, plaintiff could recover only what it was worth, and that if he had been paid all that it was fairly worth, the verdict should be for the defendant. This, we think, gave defendant all that he had a right to ask. 7. A special exception was taken to that part of the court’s charge hereinabove stated, permitting the plaintiff to recover the fair value of the work done, in the event that it did not come up to the requirements of the contract, and was yet worth some [251] thing in excess of the payments received, because there was no evidence of value, save the price stipulated in the contract. Assuming that there was no evidence justifying a right to recover on a quantum meruit, only, and that the instruction should have been given; yet it is plain that no injury resulted to defendant from its refusal. There was a conflict in the evidence relating to the character of the work done, and the jury decided that issue in favor of the plaintiff by returning a verdict for the full contract price. They were, therefore, not called upon to consider, and never reached the issue of quantum meruit. Finding no reversible error in the proceedings, the judgment will be affirmed, with costs. Affirmed.