Marsh v. Richards

Scott, Judge, delivered the opinion of the court. There is no doubt that when a plaintiff sues on a special contract to recover the compensation due on its performance, that he must show that the contract has been performed or a legal excuse for its nonperformahee. But it is not necessary always to sue on the special contract. After a contract has been performed, the money due the contractor may be recovered on the common counts unless the contract contains some special stipulation or condition requiring an averment of [105] performance. The present practice act lias not done away with the common counts, though now, when resorted to, they must contain a plain and concise statement of the facts constituting the cause of action. (Howard’s Practice, 195.) Although it is generally true that a party must perform his contract before he can be entitled to the compensation due on its performance, unless it is otherwise stipulated, yet there are cases in which the services rendered by the contractor are valuable to him for whom they were performed, and he has expressly or tacitly accepted them. In such cases, although the work has not been done within the stipulated time nor in the manner or with the materials required by the terms of the contract, he who performed the work may recover what it is reasonably worth to the owner, not exceeding the contract price. When work is to be performed with a specified material, or in a particular manner, for a price agreed upon, and which is favorable to him who has the work performed, the contractor, can not, by violating his contract, place himself in a better situation than if he had complied with his undertaking. The terms on which it was proposed to do the work may have been the inducement to the contract, and to permit the contractor to violate his contract and to recover the full value of his labor and materials would be encouraging dishonesty and unfair dealing. In such cases, the measure of damages would seem to be justly arrived at by the statement, that if the work, when done under the contract and in pursuance to its terms, is worth the price agreed upon, what is the work worth, done as it is, proportionally to the price fixed by the contract ? In this way, he who has contracted for the work will retain the advantage he had a right to secure to himself in fixing the price of the work, and of which the contractor can not deprive him by his own act in violating his undertaking. This, of course, goes on the ground that the party insists on his contract, and has not consented to its -abandonment by the con-' tractor. When he, who has contracted to have work done, is in a situation to see and to know that the work is not be [106] ing done in pursuance to the terms .of the contract, it will always be prudent to object at once, as otherwise the jury may draw such inferences as to its abandonment from his failure to do so as all the circumstances may warrant. Fair dealing and a desire to avoid litigation would seem to require this much. When a contract is by consent abandoned, there will be no hardship in allowing the contractor to recover the value of his materials and labor on a quantum meruit. We do not conceive that the petition in this case is founded on the special contract. It is very informal, but it must be regarded as a complaint for the nonpayment of the sum which the plaintiff’s services and materials were worth. The petition contains two causes of action stated in a way contrary to the terms of the statute. When two causes of action are joined in a petition, they should be stated separately, and each cause should stand by itself, and there should be some words showing that another cause of action was about to be stated. This petition begins with the statement of one cause of action, and in the middle of it sets out another, and af-terwards resumes the statement of the cause first begun to be set out. Such a course must inevitably produce confusion ; and it is strange that parties, who conceive that they have a good cause of action, should not endeavor to set it out in a plain, simple way, so as to be easily comprehended. If he wishes to join in the same petition two causes of action, after one cause is fully stated, he should begin the second statement, and every subsequent one, with the words and for another cause of action,” &c., or some such words as will clearly set forth his intention. Plaintiff can not and ought not to expect any advantage by jumbling several causes of action together in such way as gives rise to a contention whether one or more causes are united in the petition, and as to the relief to which he is entitled. So the statute requires that the several defences should be stated separately, just as several pleas were formerly pleaded in suits at law. We are of opinion that the court erred in excluding evidence, of the value of pressed brick and in giving the instruc [107] tion in relation to that subject. In excluding evidence of tbe value of pressed brick, the court took from the jury the principal element which would be regarded in ascertaining the amount of injury sustained by the defendant in consequence of the violation of the contract by the plaintiff. That evidence might not be conclusive, nor would it be the only matter weighed by the jury in forming their verdict, but certainly it was a subject for their consideration, and no reason is seen why it should be excluded. Not satisfied with this, the party would have the court establish a measure for the ascertainment of the defendant’s damages which was utterly impracticable, and which was pronounced to be so by all of the witnesses examined on the subject. The standard proposed was such that nothing was known about it. Indeed it is not easily understood what is meant by the “ market value” of houses. The plaintiff’s undertaking to build the front walls with pressed bricks at a low price may have been the inducement to the defendant to enter.into the contract. The jury should have been instructed, that, in fixing the damages sustained by the defendant, they should take into consideration the price of the work as declared by the contract, and then determine, if the work when done in pursuance to the contract is worth that sum, what it is worth done as it is. A contractor, who has undertaken to build a house with a costly material, will not be permitted to use an inferior one, and then say that the difference is a matter of taste, and that the one house is as valuable as the other. If one pays for the gratification of his taste, he has a right to have it gratified. But this is not matter of taste, as pressed bricks are worth more than ordinary ones in a building. (Farmer v. Francis, 12 Ired. 283.) Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Napton absent.