Cann v. Rector of Church of the Redeemer

GOODE, J. (after stating the facts). —The circuit court held the plaintiffs’ action was on the contract between the parties and not quantum meruit, but the counsel for both sides say the form of the action in that regard is immaterial to a decision on the appeal. It is insisted for the plaintiffs, that whatever the form of the action may be, the evidence introduced made a case for the jury; and for the defendant that no case was made, either on the contract or quantum meruit. It may be true, that this question is not important here; but if the cause is tried again it would be important then in this respect, if no other: if the suit is on the contract, the — 182 — amount of a possible recovery by the plaintiffs, since their disclaimer of the remuneration they would have earned as superintendents, would be, not the reasonable value of the service they rendered in drawing the plans and specifications, but the stipulated price of that service; whereas, if the action is quantum meruit, they can only recover the reasonable value of the service, not to exceed the stipulated price. Ehrlich v. Ins. Co., 88 Mo. 249. A party who has fallen short of fully performing his obligation under a contract, may be entitled to maintain'an action quantum meruit for several kinds of substantial benefit resulting to the other party from partial performance; such as an improvement of the other’s property, the sale and delivery of goods to him, or work done for him. A benefit of that sort, if it is not a perfect compliance with what was stipulated for, cannot be accepted and utilized without making reasonable compensation. Yeats v. Ballentine, 56 Mo. 530. Because something of value is received and retained by one party to the contract, the law will not leave the other, who has contributed the valuable thing, wholly without remedy on account of an imperfect discharge of his duty. It will deny him a remedy on a contract whose terms he failed to observe, but will give him as 'much compensation as is fairly merited by his performance as far as it-went, to be measured by the reasonable value of the benefit accruing from it. In the contingencies stated, the suing party is in fault. But one may have the remedy quantum meruit, when his adversary, and not he, prevents full performance of a contract and is, therefore, in fault. If a party is prevented from completing his part of an agreement by the obligee, he may, if he chooses, treat the contract as abandoned and sue for what he had done already toward performance, instead of seeking damages on the contract for breach. Ream v. Watkins, 27 Mo. 516; Ehrlich v. Ins. Co., 88 Mo. 249. We think the only way in which a right to sue quantum meruit could have — 183 — arisen in plaintiffs’ favor, was by the church corporation refusing to go on with the building after satisfactory plans had been submitted by the plaintiffs, thereby preventing the plaintiffs from superintending the construction of the proposed edifice; which full performance of their obligation would otherwise have required them to> do. If this happened, plaintiffs had the privilege of waiving damages for the breach and suing for the reasonable value of their work. Did they do this, or sue for an alleged breach? The fact that the terms of the contract are stated in the petition is not determinative of this question one way or the other; for a pleader may state a contract and its breach by the defendant, and nevertheless state a cause of action- quantum meruit, if he avers a waiver of damages for the breach and asks only for the reasonable value of what the plaintiff had done toward performance before the defendant stopped him. Cases supra. The petition in this action, as originally filed, manifested no intention on the part of the plaintiffs to waive any damages to which they might be entitled on account of the defendant’s assumed breach; but, instead, distinctly asked judgment, not only for the value of the work actually done, at the contract price, but also for the remuneration they would have earned at the agreed rate, by superintending the construction of the building if the contract had been carried out. A petition in that form and asking to recover compensation which would have been earned for future services, cannot be construed to state a cause of action quantum meruit. But the nature of plaintiff’s proceeding was changed before the trial began, by their abandonment of any claim for what they would have earned by superintending the building. This waiver in open court of the relief asked by that part of the petition which counted on possible future earnings, left plaintiffs suing for nothing but the value of work already done; and as the reasonable value of that work was averred, though at the con — 184 — tract price, the cause could then he regarded as quantum meruit. The disclaimer in.regard to future earnings was made in the form of an abandonment of the claim for damages contained in the paragraph of the petition we have quoted, and its effect on the trial was equivalent to an amendment of that pleading. Plaintiffs were defeated because, in the opinion of the learned circuit judge, their evidence indisputably proved the plans and specifications were not satisfactory to the defendant corporation, which fact precluded a recovery against it; while there was no showing of liability on the part of the defendant Trotman. As to the latter the ruling was unquestionably correct. Not a line of evidence is before us to show either that he made a contract with the plaintiffs or that they rendered him a personal service of value. They were working for the Church of the Redeemer, not its rector. Whether the action is on the contract or quantum meruit, it is obvious that he is not liable. The only conceivable theory on which he could be, is for exaggerating his authority as agent of the church, to the detriment of the plaintiffs; b,ut nothing of the kind is charged. The plans were rejected as unsatisfactory by the vestry; which, so far as there is any proof bearing on the subject, is shown to be the controlling body of the incorporated church; its board of directors or trustees in whom is vested the management of the temporal affairs of the corporation. No by-laws of the corporation were put in evidence, nor any rules of the Episcopal denomination respecting the control of the church property; but there was-oral testimony that the management of the business of a particular congregation of that sect, is committed to its vestry; and we shall assume this to be true in considering the case. The reason, and the only reason, given why the plans, drawings and specifications submitted by the plaintiffs were unsatisfactory, was that they were entirely too expensive for the means of the church; which — 185 — meant, of course, that they called for too expensive a building. This reason was as good as any if the vestry’s action was taken in good faith and not arbitrarily, or from some extraneous motive, when, in truth, the plans were satisfactory. The conclusion derived from the answer of the Church is that its objection to the plans and main defense, is that plaintiffs disregarded instructions given to them as to how costly a house plans should be prepared for — that their instructions were to draw plans for a house whose cost, both as to' the basement and the entire structure, should not exceed a designated maximum, and that instead of doing this, plaintiffs prepared plans for a much more expensive building. Proof that explicit instructions were given and disregarded would be a complete defense; but practically nothing of that kind was shown; certainly nothing conclusive. Therefore, the circuit court cannot be justified in ordering a verdict for the defendant church on the ground that the evidence left room for no defense save that plaintiffs had materially departed from their instructions. But without proof that instructions were given and ignored, plaintiffs were not entitled to recover if the evidence showed beyond question their work was. declined in good faith as unsatisfactory because the edifice called for would be too expensive. If no information was communicated to the plaintiffs regarding the expense the vestry was willing to incur in erecting the proposed house, and plaintiffs prepared plans without asking any information on the point, they took the risk of having their work rejected, if, in the opinion, of the vestry, too great an outlay of money would be required in folloAving the plans. To avoid that risk it was incumbent on them to get advice from the proper source in advance. It follows that the rejection of the plans, in good faith, is conclusive as against plaintiffs’ right to recover, except in one of the several contingencies stated below. — 186 — Though the written contract says nothing about the price of the contemplated edifice, it cannot be construed as authority to the plaintiffs to draw plans for a house of any cost they saw fit. We find this stipulation in the contract: “The architects under the direction and to the satisfaction of the owners, shall and will provide plans, specifications, detailed drawings, etc.” That term looked for directions to be given to the architects regarding the kind of house desired. The vestry had no' building committee and the mention of one in the written instrument was a mistake and is to be disregarded. The owner was the corporation itself, and the directions would have to be given by its administrative body, the vestry, or some agent authorized by the vestry. Therefore, the contract called for directions to the architects by the vestry, and for plans to be prepared by the architects to the satisfaction of the vestry; and to exclude the defense that the plans actually prepared were not satisfactory because they would entail too much expense, it must appear that the vestry authorized those plans, either directly by its own action, or through an agent whose act was originally authorized or subsequently ratified, or that it accepted the plans with knowledge of the expensive character of the house designed. To authorize the plaintiffs to go to the jury there must have been some evidence tending to prove one or the other of those facts, or else that the refusal of the work was from an ulterior motive. That the vestry itself instructed plaintiffs to- prepare such plans as were submitted, is not asserted. Neither do Ave think any showing Avas made that the plans and specifications were accepted by.the vestry. It is true they were in the hands of that body, or of a member of it, probably Dr. Trotinan for five or six weeks; but naturally they would be under examination for some time. So far as is disclosed, no use Avas made of them by the church, and they Avere rejected at the first meeting — 187 — of the vestry after submission, aud returned to the plaintiffs. Nothing substantial was proved to show an acceptance or justify a finding in plaintiffs’ favor on that theory. Our attention is called to the circumstance that a picture of the perspective of the proposed building was admired and framed by the vestry, or one of them; but that is a trifle. It does not appear that the Church officials, when they examined the picture, had any knowledge of what it would cost to build such a house. The evidence goes to show plaintiffs’ work was done under the supervision and according to the instruction and wishes of the rector of the church, and it is contended that he had authority, express or implied, to give directions ; or, if he did not, that his conduct in that regard was ratified by the vestry.. A proposition much pressed by plaintiffs’ counsel is that as Dr. Trotinan was president of the vestry and rector of the church, instructions regarding the preparation of plans and specifications for the contemplated edifice was a power incidental to his office and which the law will imply as existing inhim, unless his authority is shown to have been restricted. For that matter, the contract itself shows the plans were to be drawn to the satisfaction of the owners of the church (the vestry) ; that the agreement was with that body and was signed by the rector as president of it; and this would restrict any authority in the rector which the law might otherwise imply from his position as president. The vestry reserved control over the plans. But no such power as is contended for is implied by the law to belong to the rector of a church or president of its vestry. As said before, we are not enlightened by the evidence concerning the internal regulations of Episcopal churches or their rules of government, or whether there are rules. Plaintiffs’ counsel seek to liken the office of president of the vestry to that of a business corporation, and invoke the rule of law that presidents of — 188 — corporations may, without express authority, do any act necessary to carry on the business of their companies. Ferguson & Wheeler v. Venice Trans. Co., 79 Mo. App. 352; Degnan v. Thoroughman, 88 Mo. App. 62. It is true the public in dealing with the president of a corporation may, in the absence of notice to the contrary, presume that he is clothed with authority to do such acts as are customarily done by him or by the presidents of similar corporations; but this record contains no proof concerning the usual functions of the presidents of Episcopal vestries, nor any proof that the rector of this particular church had been permitted to have such control of its business affairs as would justify the plaintiffs in assuming that he had authority to instruct regarding the plans to be drawn. Therefore, we cannot deduce the requisite authority in Dr. Trotinan, either from the powers usually exercised by vestry presidents or the powers previously exercised by him with the consent of his vestry, Looking at the matter without any evidence to throw light on it, we must say it seems extremely improbable that the pastors of churches or the presidents of boards of church trustees, usually control the building of church edifices or dictate how much they shall cost. That function is peculiarly within the province of the governing body of a church, which must take into consideration the means'available and the needs of the congregation. That the law does not imply any such power in a pastor or the president of a board of church trustees, from the position he holds, but that such a duty must be performed by the trustees themselves or their appointed agents, has been decided several times by respectable courts. Constant v. Rector, etc., 4 Daly. 306; Bank v. Church,. 109 N. Y. 512; Church v. Gavalon, 82 Ill. 170; Katron v. Universalist Soc., 46 Iowa 106; Packard v. Church, 10 Metc. 427. We have quoted in our statement the testimony relied on to show authority was actually conferred on the — 189 — rector. It is oral and consists exclusively of the testimony of Roland Switzer, the secretary of the vestry. The resolution passed by the board December 1, 1902, went no further than to authorize Dr. Trotman to sign the written contract with the plaintiffs. But the law does not require the appointment of an agent of a corporation to be by resolution or formal vote of the directors or trustees, nor that the powers conferred on him shall be thus delegated. He may be appointed informally without vote or resolution and clothed with authority in the same manner. Jones v. Williams, 139 Mo.1; Bank v. Gilstrap, 45 Mb. 419. Such action must be taken by the directors when assembled as a board, and cannot legally result from the assent of the majority given singly when not thus assembled. Hill v. Mining Co., 119 Mo. 9. The reason of this rule, as we understand it, is that the directors, trustees, or the governing body of a corporation, whatever its designation, should act on matters after deliberation, and may not bind the corporation by individual assents without opportunity for discussion or interchange of views. The testimony of the secretary on the point of oral authority to the rector to supervise the preparation of plans for the new church, was given disconnectedly and with many interruptions from the defendant’s counsel and arguments on objections. We disapprove of this mode of receiving testimony; for it tends to confuse a jury and prevent them from grasping the true effect of what a witness says. An attentive scrutiny of the testimony in question has convinced us that it does not warrant the inference of any oral authority to the rector. While the witness said at first that Dr. Trotman was given full power to act for the vestry in all business connected with the building of the new church, and to conduct it as he saw fit, on perusing his entire statement on the subject it is plain that he gathered this impression from isolated remarks made by vestrymen, and probably after the adjournment — 190 — of the meeting of December 1. There is nothing in his testimony from which the conclusion can be drawn fairly that a majority of the vestry, even by informal action, agreed to clothe Dr. Trotman with full power over the architects, either while the board was in session, or when it was not. Barcus v. Road Co., 26 Mo. 102; Williams v. Female College, 29 Mo. 250. If any action can be taken by corporate directors or trustees when not in session, probably it could only be done by their unanimous consent. But this proposition and its provisos need not trouble us, as there is no showing that a majority of the vestry assented at any time to the rector’s directing the architects regarding the plans. Nothing was disclosed tending to prove the vestrymen were aware that the rector was having plans prepared for a building to cost more than was desired and, with such information, permitted plaintiffs to go on with the work Avithout protest. Nor was any other conduct of the vestrymen shown from which ratification of the rector’s acts by the vestry can be inferred, to estop it from disclaiming responsibility for those acts. It has thus been seen that there was evidence neither of actual authority in the rector to give instructions regarding the plaintiffs’ work nor of implied, authority by virtue of his office, nor of ratification of his unauthorized acts by the vestry. The question of whether there was evidence for the jury to consider on the issue of the vestry’s good faith in rejecting the plans remains. Though these were to be prepared to the satisfaction of that body, and though it might reject them if unsatisfactory, either in regard to the style of the building called for, or its expense, it could not reject them arbitrarily or from a motive wholly unconnected with the plans themselves. There is evidence in the record which has some tendency to induce a belief that the plans were rejected, not because the building provided for was too — 191 — expensive, at the usual prices of labor and material, to suit the vestry, but because the cost of building houses in St. Louis at the time the bids were taken, was deemed excessive. That is to> say, from the evidence the inference is legitimate that the house called for by the plans was such as the vestrymen would be willing to erect when it could be done for a reasonable price; but that, in their opinion, the prices then prevailing were unreasonable and would fall; and therefore, it was wise to postpone building until later. This was no just reason for rejecting the plaintiffs’ plans. If the cost of building was higher than the vestrymen wished to incur at that time, they should have taken this into consideration, and not ordered plans and specifications. Or, if they ordered plans without informing themselves of the prices of labor and material, they were in fault and not the plaintiffs. This means that plaintiffs’ plans could be rejected only if the vestry was dissatisfied with them and not merely with the cost of building at that time. As well say that if a man ordered plans from an architect, intending to build, he might decline to receive and pay for them because a subsequent change in his financial affairs made it impracticable for him to build. A stipulation in a contract that a party for whom work is to be done or to whom an article is to be furnished, may reject the work or the article unless it is satisfactory to him, gives that party the right to reject it as unsatisfactory in any respect, if he acts in good faith; but does not give him the right to reject it arbitrarily; and the words “good faith” and “arbitrarily” we take to mean that the rejecting party must find some substantial fault in the work or the article itself, which renders it unsatisfactory, and not merely a reason for changing his mind regarding the project he had in view, and for which he ordered the work or the article. That such a term in a contract requires good faith and a just motive in the party to be pleased in declining the stipulated service, is the law. Dinsmore v. Livingston County, 60 — 192 — Mo. 241; Williams v. Railroad, 112 Mo. 463, 20 S. W. 631, s. c., 153 Mo. 487, 54 S. W. 689; Blaine v. Knapp & Co., 140 Mo. 241, 41 S. W. 787; Kinnerk v. Base Ball Club, 92 Mo. App. 669; Eldridge v. Fuhr, 59 Mo. App. 44. The circumstances which excite doubt as to the good faith of some of the vestrymen, are that the plaintiffs, instead of being notified that their plans were unsatisfactory, were notified by the rector that the vestry had decided to postpone building until after the World’s Fair closed. It was also in proof that two of the vestrymen, the rector and the secretary, knew all the time the cost of the house for which plaintiffs were preparing plans. Moreover, the rector promised plaintiffs they should be paid for their work, and there was an effort made to change the minutes of the meeting at which the plans were ordered. The difficulty confronting us in holding there was evidence for the jury on the question of the good faith of the vestry in rejecting the plans submitted by plaintiffs is that no testimony was adduced to connect a majority of the vestrymen with the dubious circumstances. A wide latitude was accorded to the owners of the proposed building (that is, the vestry), in approving or rejecting the plans and they might decline them as unsatisfactory because of the outlay of money required to build in conformity to them. This was the ground assigned for the vestry’s action and must be accepted as the true ground unless there are facts tending to establish that a different motive influenced a majority of that body. There is no' proof that the rector was authorized to notify the plaintiffs that the erection of the church had been deferred until after the World’s Fair, or that the plaintiffs would be paid for their work. The effort to change the minutes, so as to prejudice the plaintiffs by a false recital, failed. An impression is produced' by the evidence that the plaintiffs’ claim possesses equity. But they relied too exclusively on the rector after'they had bound themselves to satisfy, not him, but the vestry. Though it is a fair inference that some — 193 — members of that body were solicitous to evade paying plaintiffs for' their work and willing to aid that purpose by a questionable expedient, plainly we cannot impugn the motive of .the members who refused to join in falsifying the minutes because of the attempt of others. The rectitude of the majority ought not to be impeached by the improper conduct of a minority. Neither can we bind the vestry by the statements and acts of the rector, in default of proof, direct or inferential, that he acted by authority. To make out a case of bad faith it was incumbent on the plaintiffs to introduce evidence either positive or circumstantial, to show a majority of the vestrymen acted from a wrong motive. In our opinion this was not done; and in the absence of such proof, the presumption obtains that the plans were rejected in good faith because they were not satisfactory as, according to the contract, they were bound to be to entitle them to acceptance. The judgment is, therefore, affirmed. All concur.