Newton v. Consolidated Construction Co.

Ostrander, J. (after stating the facts). 1. Performance of the building contract would have given to the plaintiffs the structure called for, and would have cost them the contract price. Owing to the default of the contractor, there is no building, plaintiffs have paid no money, and it appears to be conceded that there are no attaching liabilities by way of liens or otherwise. It would seem reasonable that plaintiffs should have the advantage of their bargain, whether they ever get the house or not. “The measure of damages for the failure of a contractor to construct a building is the reasonable cost of having the building constructed by another contractor less the contract price. Where a certain portion of the building is left undone the same rule applies ; that is, the increased cost of completion is the measure of damages for failure to complete. * * _ * If the building is left incompleted, it is immaterial that in its incomplete condition its value for purposes of sale is not lessened by reason of the work left undone; so, where the owner of a house which the defendant had failed to complete sold it in the condition in which the defendant left it, and there was no evidence that the price he received was less than he would have received if the defendant’s contract had been fully performed, he nevertheless was entitled to recover the cost of completing according to the contract.” 2 Sedgwick on Damages (9th Ed.), §648. “In such cases the employer is generally entitled to measure his damages by what the necessary expense would be to procure to be done the work which the contractor neglected to do, whether it_ is done or not; for the same reason that a vendee in an executory contract for the sale of goods need not, in fact, pur — 71 — chase the goods he was entitled to receive from the vendor in order to have his damages computed on the basis of what they would cost him at the time of the breach.” 3 Sutherland on Damages (3d Ed.), § 699. Both text-writers refer to decisions supporting the rules stated in the text. In King v. Nichols & Shepard Co., 53 Minn. 453, 455 (55 N. W. 604), it is said: “Upon such a contract as this, to wit, to put the machine in good repair and condition, it was not necessary that, in order to recover, plaintiff should himself put it in that condition. As soon as defendant failed to do what it agreed to do, plaintiff might recover the reasonably necessary cost of doing it.” Where the employer had taken possession of an uncompleted building, and the contractor sued him, it was held that: “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.” Germain v. School District, 158 Mich. 214, 218 (122 N. W. 524, 526). There are no opposed opinions upon the proposition that a defaulting contractor must respond in damages, although some judges have apparently had difficulty in formulating a rule governing the extent of liability in cases where the work is not completed. This apparent difficulty arises upon some notion of the remote, uncertain, or speculative character of the damages sought to be recovered. In Lamoreaux v. Rolfe, 36 N. H. 33, a case cited by appellant, the contract, which one of the parties wholly refused to-perform, was after breach relet to another, for an amount stated, but was never carried out. In a suit — 72 — against the first contractor, this price agreed to be paid the second and subsequent contractor was relied upon as evidence of the damages plaintiff had sustained. It was held that, the defendant having absolutely refused to perform the contract, there was no reason why the plaintiff should wait any length of time before prosecuting for the damages, but that the price fixed in the subsequent contract, it never having been performed, was not evidence of the damages sustained. If it were otherwise, it was said, the plaintiff might by arrangement offer to pay, and the subsequent contractors offer to accept, any sum, with no intention of carrying out the contract. See, also, Bertram v. Bergquist, 153 Ill. App. 43. Reason and the weight of authority sustain the propositions, first, that plaintiffs are entitled to the benefit of their bargain, whether they do or do not build the house, and second, that the rule for determining the benefit was correctly laid down by the trial court. It follows that the testimony of Newton concerning an intention to build at some time was, if wholly immaterial, not prejudicial to the defendants. 2. It was error to admit the notice of the building department as evidence of the condition of the structure at a, particular time. It was hearsay. The error was not prejudicial, because other competent testimony covered the same subject and is practically undisputed. Besides, the objection now made is not the one made upon the trial. 3. With respect to the testimonial qualifications of the witness Featherstone, it should be said that he gave no opinion of damages within the rule of damages given to the jury. As to what the house and lot would have been worth with the house completed according to specifications, he appeared to be competent to give, and did give, his opinion. He was competent also, apparently, to place a value upon the vacant — 73 — lot. But as to the value of the completed house, he stated that he knew only what, or about what, contractors would ask for it, or would agree to build it for. While I think the testimony was of little probative value as affecting the real issue, and that no error would have been committed in striking it out, it may be safely said that it did defendants no harm. 4. 1 Comp. Laws, § 414 (4 How. Stat. [2d' Ed.] § 11926), provides that: “In cases tried in the circuit court in which such stenographers shall be engaged, sections one and four of an act entitled ‘An act to declare and establish the practice of charging or instructing juries, and in settling the law in cases tried in the circuit court,’ approved March twenty-sixth, eighteen hundred and sixty-nine, shall not apply.” Said section 414 is the concluding one of an act entitled: “An act to provide for the appointment and to fix the term of office, duties and compensation of circuit court stenographers in the State of Michigan” — being Act No. 183, Pub. Acts 1897. The act of 1869, to which section 414 refers, is Act No. 67, entitled: “An act to declare and establish the practice in charging or instructing juries, and in settling the law in cases tried in circuit courts.” It is to be found in 3 Comp. Laws, §§ 10243-10246 (4 How. Stat. [2d Ed.] §§ 11837-11840). The first and last sections (1 and 4) read: “Section 1. The people of the State of Michigan enact: That hereafter in all civil and criminal cases at law, circuit courts, in' charging or instructing juries, shall charge or instruct them only as. to the law of the case; and such charge or instruction shall be in writing, and may be given by the court of its own motion.” “Sec. 4. The instructions or law so settled by the — 74 — court in writing, either upon its own motion or upon the application of the respective parties, shall be read to the jury, filed in and be a part of the record of the case, and the court shall in no case orally qualify, modify, or in any manner explain the same to the jury.” The legislature of 1869 .passed also Act No. 92, entitled: “An act to provide for the appointment of a stenographer for the .circuit court for the county of Wayne, and other counties in this State, and to limit the operation of sections one and four of an act” — referring to Act No. 67. This act may be found in 2 Comp. Laws of 1871, §§ 5027-5035, as amended by the Laws of 1871, Act No. 82, and in sections 6503 et seq., 1 How. Stat. (1st Ed.). It does not appear in the compilation of 1897. Its constitutionality was considered by this court in Sheahan v. Barry, 27 Mich. 217, 224; it being there contended that it embraced more than one object. It was held that Act No. 92 of 1869 was valid and effectual to relieve judges of the Wayne circuit court from the operation of section 1 of the act. It will be noticed that the title is broader than that of the act we now are considering, and that the court was of opinion that no duplicity was indicated in the title. If the point now urged was for the first time presented to the court, some difficulty might be met with in holding that 3 Comp. Laws, §§ 10243-10246, were not binding upon all circuit courts. So late as the decision in Simons v. Haberkorn, 139 Mich. 130, 132 (102 N. W. 659, 660), it was said, generally, that these sections “declare and establish the practice in charging or instructing juries.” Of course, the question we are considering was not there involved. In People v. Quimby, 134 Mich. 625, 635 (96 N. W. 1061) the same justice who delivered the opinion in Simons v. Haberkorn said that a reference to the note under — 75 — section 10246, 3 Comp. Laws, will show its provisions are not applicable where a stenographer is employed. In that case counsel was contending that his requests to charge, if they correctly stated the applicable law, should have been given as prepared by him. This right the court denied. In People v. Smith, 177 Mich. 358, 360, 361 (143 N. W. 12), an assignment of error was based upon the fact that the trial judge marked requests of counsel, “Refused, except as covered in the general charge,” instead of marking each as “Given” or “Refused.” It was said: “We think what was done a sufficient compliance with the statute, in view of the fact that error may now be assigned upon the charge or refusal to charge, without the necessity of taking an exception.” But in view of the decision in Sheahan v. Barry, supra, which was rendered in 1873, and the practice which has since then obtained in the circuit courts to disregard the provisions of sections 10243 and 10246, we are of opinion that the questions presented should be answered against the contention of appellant. If, however, the practice which the statute imposes was followed generally by the courts, there would be presented to this court fewer complaints of the nature of those hereinafter considered. 5. It is an exasperating thing, one which most trial lawyers have at some time had occasion to complain about, to have the trial judge say to the jury, “I am requested to charge you,” proceed to read a request, and end by so qualifying or amending it, with or without argument, that its force as a- declaration of the applicable law is weakened or wholly lost. The jury will usually understand by whom the request is preferred, and if several requests preferred by the same party suffer this fate, especially if they are contrasted with an unqualified, connected statement of rules favorable to the other party, dissatisfaction — 76 — with an adverse verdict is to be expected. It is not that trial judges intend to be unfair, or intentionally depreciate the requests preferred by either party, though unfairness is often charged by the defeated suitor, but it is because, in the hurry of trials, no other course seems open to the effort to give so much of the requested law as. seems to the judge to be applicable, while refusing so much as is thought to be inapplicable or wholly wrong. It is against the supposed evils which may result from the delivery of qualified instructions, explained, or attempted to be, by argument on the part of the judge, that the statute, and especially the sections held to have been made inoperative by the later legislation, seems to be aimed. Very often counsel are partly or wholly to be blamed for presenting. requests so worded as to present contradictions and applicable and inapplicable rules, of law in the same request, or requests so numerous that the court can do no more than hurriedly examine them. In the case at bar counsel for appellant say that at least 11 times, in giving and while reading from requests preferred by them, the court preceded the reading by the words, “I am asked to charge you,” that in one or more of these instances these words were followed by, “And I charge you,” which were omitted in other instances, emphasizing, it is claimed, those portions of the charge so designated, and in concluding the charge said: “I have perhaps given a longer charge than I otherwise should, but the Supreme Court have said, so far as possible, the court should give the requests to charge in the language in which the counsel have written them, and for that reason, perhaps, I have given a longer charge than I otherwise would.” Complaint is made also that the court, prefacing a request as above indicated, after reading it, said, in — 77 — words or substance, “Now, doubtless that is so, but,” etc., or, “Undoubtedly that may be so, but,” etc. Particular portions of the charge are called to attention in the brief for appellant showing claimed argumentative qualifications and modifications of requests, in which it is said inferences which were for the jury alone were drawn by the court. I shall not set out the requests or the charge as given. Some argument was indulged in by the court, and, if the statute which has been referred to were controlling, a reversal of the judgment would be inevitable. I have applied to the charge the test of repeated careful readings of it, and am impressed that the jury could not have misunderstood the court, that no improper rules were laid down, and, in the absence of a controlling statute, think that no reversible error is made to appear. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.