Germain v. Union School District

Brooke, J. (after stating the facts). There are a great many assignments of error, only a few of which will be considered. It is claimed by defendant that no testimony on the part of the plaintiff should have been received, because of the fact that the plaintiff never received his final estimate from the architects or the school board, and neither alleged nor proved that the same was fraudulently withheld from him. In support of this position defendant cites Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and other cases. We are of the opinion that all the cases cited upon this proposition are clearly distinguishable from the case at bar. As already pointed out, the defendant discharged the architects on September 13, 1906, several months before [217] the plaintiff instituted this suit. It is obvious that thereafter the plaintiff was under no obligation to demand his final estimate from them, and, had it been demanded, the architects could not have furnished it. During the time elapsing between the discharge of the architects and the commencement of suit, many demands were made by the plaintiff upon the defendant for payment of the balance he claimed to be due which were by the defendant refused. The contract provided that, in case the architects were discharged, the school board itself should act in the place and stead of the architects. Under these circumstances, we hold that the plaintiff’s failure to produce the architects’ final estimate or explain its absence was of no consequence. The controversy was upon its face squarely between plaintiff and defendant at the time suit was brought; the defendant at that time being clothed with all the rights and duties of the architects. Testimony was properly admitted. Error is assigned upon the admission of Exhibit No. 24, which was an offer on the part of the defendant to pay to plaintiff $750 in settlement of his claim. The exhibit was admitted over the specific objection on the part of the defendant that it contained an offer of compromise and was for that reason incompetent. The court remarked that the offer made in the exhibit was not binding on the defendant, but failed to state that it was not an admission of liability. It should have been excluded. Montgomery v. Allen, 84 Mich. 656 (48 N. W. 153). Error is assigned upon that portion of the charge of the court covering the measure of damages, which was in part as follows: “The plaintiff claims $3,056. If you find that he has failed to live up to the terms of the contract, that the building which he has furnished is not such a building as was contracted for, then you will deduct from this claim of the plaintiff such sum. as will make it such a building as he contracted to furnish in value. In other words, you will require him to do those things which he ought to have done under the terms of the contract. Not having [218] done the same, you will require him to pay the board for doing those things which he ought to have done, and which they had to do in order to complete the building, and also such sum as will make the building as good as it would have been under the terms of the contract had it been complied with.” The vice of this instruction is that it assumes that all the plaintiff was bound to do was to furnish a building worth the contract price, whereas he was bound to furnish a building according to the plans and specifications, even though it were worth many hundreds of dollars more than the contract price. Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications. Eaton v. Gladwell, 121 Mich. 444 (80 N. W. 292), and cases cited. Many other errors are assigned, but they are not discussed, as they are not likely to arise upon another trial. Judgment reversed, and a new trial ordered. Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.