Where there was a special contract to build a house by a certain
day, which was not fulfilled owing to various circumstances, and
the contractor brought a suit setting forth the special contract
and averring performance, it was erroneous in the court to instruct
the jury to find for the plaintiff, as the work was not finished by
the appointed day, though it was completed after the time with the
knowledge and approbation of the defendant.
By the terms of the contract, the performance of the work was a
condition precedent to the payment of the money sued for.
The general rule of law is that whilst a special contract
remains open -- that is, unperformed -- the party whose part of it
has not been done cannot sue in
indebitatus assumpsit to
recover a compensation for what he has done until the whole shall
be completed. But the exceptions from that rule are in cases in
which something has been done under a special contract, but not in
strict accordance with it; but if the other party derives any
benefit from the labor done, the law implies a promise on his part
to pay such a remuneration as the work is worth, and to recover it,
an action of
indebitatus assumpsit is maintainable.
The case must be remanded to the circuit court to be tried upon
such counts as are in the original declaration, which charges the
defendant in the sum of $5,000 for work and labor done, for
materials furnished and used by the defendant in the erection and
finishing certain stores and buildings in the City of Washington,
and upon the money counts for a like sum paid by the plaintiff for
the defendant, for a like sum had and received, and for a like sum
paid, laid out, and expended, by the plaintiff, for the use of the
defendant, at her request. And in such action the defendant may
recoup the damages which she has sustained from the imperfect
execution of the work.
This was an action of debt brought by Jones against Ann R.
Dermott for the sum of five thousand dollars. The declaration
contained four counts,
viz.:
Page 64 U. S. 221
1. That the defendant, on the first day of July, 1852, was
indebted to the plaintiff in the sum of five thousand dollars, for
work and labor done and materials furnished to the defendant by
plaintiff, and used by her in and about the erection of certain
buildings and finishing and completing certain stores in said
buildings in the City of Washington.
2. For a like sum paid by plaintiff for defendant.
3. For a like sum had and received.
4. For a like sum paid, laid out, and expended by plaintiff, for
defendant and at her request.
The plaintiff below had also filed a bill on the equity side of
the court, which was pending, whereupon the defendant moved for a
rule upon him to elect between his said action of debt, pending on
the common law side of this court against this defendant, and his
said bill pending on the equity side of this court against the said
defendant, as to the sum of money, to-wit, $14,000, with interest,
for which a decree is prayed against said defendant by plaintiff in
his said bill.
Whereupon the plaintiff says he elects to recover in this action
only the $5,000 mentioned in his said bill in equity, to be paid by
defendant on the completion of the said stores and warehouse in
said bill mentioned, and claimed on the 1st October, 1851, with
interest, and hereby disclaims all and every right or pretension in
this cause to recover any portion of said $14,000.
Whereupon the court made the following order, to-wit:
"The plaintiff having made his election under the said order or
rule made at March term, 1854, as aforesaid, to prosecute this
action of debt for the recovery of the said sum of $5,000:"
"It is further ordered by the court that the said bill in
chancery be dismissed, and the same is dismissed accordingly, quoad
the said $5,000."
The reporter will not carry the reader through the following
process of pleading, the mention of which will be sufficient.
It has been already stated that the declaration contained four
counts. The defendant pleaded specially to the declaration setting
up the special agreement &c. Whereupon the
Page 64 U. S. 222
plaintiff amended his
narr., adding special counts upon
the contract. The amended
narr. was objected to. Objection
overruled, and exception taken. The amended
narr.
contained the following counts:
1. On the contract alleging performance, and that $5,000 was
due, stating the time mentioned in the contract, 1st October, under
a videlicet.
2. Treating the time 1st October as material, averring that the
plaintiff had performed his part, but that the defendant departed
from the contract.
3 and 4. The common counts in debt for the extra work.
The pleas were:
To the first count,
nil debet, nonperformance
generally, and nonperformance specially, in not completing the
stores and warehouse on or before the 1st of October.
To the second, third, and fourth, demurrers.
To the plea of nonperformance, in not completing the work on the
1st of October, the plaintiff demurred, and judgment for the
demurrer.
Upon the demurrers of the defendant to the second, third, and
fourth counts, demurrers overruled, and judgments for the
plaintiff.
Verdict for the plaintiff on the first count, and inquisitions,
with nominal damages, on the second and third counts, and for the
value of the extra work on the fourth count. Judgment
accordingly.
From this account of the pleadings, the reader will readily
perceive the points of law which came up to this Court. But in
order to make it more clear, the prayers to the court by the
defendant none being offered by the plaintiff are inserted. There
were five prayers, the only one of which was granted was the
fourth. Numbers one and three were granted with a qualification;
numbers two and five were refused.
"
Fourth Prayer. If the jury find, from the evidence
aforesaid, that the plaintiff so negligently and unfaithfully
executed the work specified in the contract and specifications
aforesaid, that, from insufficient drainage, bad workmanship,
departure from the written specifications, or other acts or
omissions of
Page 64 U. S. 223
the plaintiff, in so negligently and unfaithfully executing said
work, the three stores and warehouse aforesaid were damaged and
injured, as stated in the evidence, then the defendant is entitled
to recoup or deduct from the amount claimed in this action all
damages sustained by the defendant, and resulting from said injury.
Granted."
"
Fifth Prayer. That under the issues joined on the
first count of the amended declaration, the defendant is entitled
to the verdict unless the jury shall find from the evidence that
the plaintiff did finish and deliver over to the defendant the
three stores and warehouse described in said written contract,
ready for use and occupation on or before the 1st day of October,
A.D. 1851. Rejected."
"
Second Prayer. That, by the true intent and meaning of
the written contract and specifications read in evidence, the said
Zepheniah Jones undertook and obliged himself to finish the three
stores and warehouse therein described, and deliver them over to
the defendant, fitting for use and occupation, on or before the 1st
day of October, 1851; and the said Jones also undertook and obliged
himself to procure and supply all and singular the materials,
implements, fixtures, matters and things requisite and proper for
the execution of said _____, and for the complete finishing and
fitting for use and occupation of said warehouse and stores. And if
the jury find that the said warehouse and stores, when delivered
over by said Jones to the defendant, were not fitting for use and
occupation, but the same were defective, unsafe, and untenantable
by reason of the cracking of parts of the walls and the settlement
of portions of the store walls or otherwise, and if the jury
further find that it was possible for said Jones to have
constructed said warehouse and stores and to have delivered the
same to the defendant fitting for use and occupation, by his
furnishing additional labor, materials, matters and things, not
named in said written specifications, in and about the fitting of
the same for use and occupation, then the said Jones did not
perform and discharge the obligation of his said contract, although
the jury may believe that the said warehouse and three stores were
erected and constructed in strict conformity
Page 64 U. S. 224
to the specifications made a part of said contract, and although
the cracking of said walls and settlement of said foundations may
have resulted from causes wholly unforeseen by either party at the
time of executing said contract and constructing said foundations
and walls, and although the said cracking and settlement may have
been caused by the weight placed on said walls and foundations, or
some part thereof, according to the requirements of such
specifications, or of additional weight placed on the same or some
part thereof by said Jones, at the request of said defendant, and
which additional weight was not called for in said specifications;
but the court further instructs the jury that the plaintiff is
entitled to recover nominal damages at all events. Refused."
"
DEFENDANT'S FIRST AND THIRD PRAYERS, WITH THE
QUALIFICATION"
"
First Prayer. And thereupon the defendant prayed the
court to instruct the jury, as follows:"
"If the three stores and warehouse in the contract mentioned
were not executed and finished, fit for use and occupation, and so
delivered to defendant, either on the said 1st day of October,
1851, in the said contract mentioned, nor at any other time, but
were, at the time the same were delivered, wholly unfit and unsafe
for use and occupation, with walls, or some of them, sunken out of
plumb and cracked, and in danger of falling, so as to be utterly
untenantable and unfit for use and occupation, then the plaintiff
was not entitled to demand and recover in this action the said sum
of five thousand dollars, as the stipulated installment which the
said contract purports to make payable on the said 1st October, on
the terms and conditions therein mentioned, but the plaintiff is
entitled to recover the value of his said work, after deducting the
cost and expense incurred by the defendant in repairing said stores
and warehouse, and rendering them fit for use and occupation, but
the plaintiff is entitled to nominal damages at all events."
"
Third Prayer. If the defendant did not at any time or
times whatever execute, finish, ready for use and occupation, and
in that state and condition deliver over to the defendant the
Page 64 U. S. 225
said stores and warehouse mentioned, but delivered the same over
to the defendant in a state wholly unsafe and unfit for use and
occupation, and untenantable, with walls sunken, cracked, and out
of plumb, and in danger of falling into ruin, whereby the defendant
was greatly injured and suffered great loss, by having to
reconstruct the said walls in part, and repair the dilapidated
condition of the building, and fit it for use and occupation at her
own costs and charges, then the defendant may recoup or deduct said
losses, costs, and charges, against the plaintiff's claim for the
said installment of five thousand dollars, claimed in this suit, or
the value of the work done by said plaintiff in and about said
stores and warehouse, but the plaintiff is entitled to recover
nominal damages at all events, which instructions the court refused
to grant without the following qualification, that is to say:"
"
Qualification. But if the jury shall find from the
evidence that the said Jones hath executed the said work according
to the specifications forming a part of the said contract, and in a
skillful, diligent, and careful and workmanlike manner, or that his
execution thereof was with the knowledge and approbation of the
defendant, then they are to find for the plaintiff the said sum of
$5,000, with interest from the date of the delivery of the said
stores and warehouse."
"To the granting of which instructions the plaintiff excepts,
and prays the court to sign and seal this his bill of exceptions,
which is accordingly done, this eleventh day of November,
1857."
"JAMES S. MORSELL [SEAL]"
"WILLIAM M. MERRICK [SEAL]"
"To the refusal of which instructions, as prayed by the
defendant, to the granting of the qualification annexed thereto,
the defendant, by her counsel, excepts, and claims the same benefit
of exception as if the refusal of the court to grant each of said
instructions as prayed, and the granting of the same with the
qualification thereto attached, were each separately excepted to;
and thereupon this, her bill of exceptions, is signed, sealed, and
enrolled, this eleventh day of November, 1857."
"JAMES S. MORSELL [SEAL]"
"WILLIAM M. MERRICK [SEAL]"
Page 64 U. S. 226
MR. JUSTICE WAYNE delivered the opinion of the Court.
This record shows that the plaintiff and the defendant entered
into a building contract, under seal, with specifications annexed,
on the 22d April, 1851. It was agreed between them that Jones, the
plaintiff, should do in a good, substantial, and workmanlike
manner, the houses, buildings, and work of every sort and kind
described in a schedule annexed to the contract of which it was a
part; that he should procure and supply all the materials,
implements, and fixtures, requisite for executing the work in all
its parts and details; and that the stores fronting on Market
Space, and the warehouse on Seventh street, should be finished and
ready for use and occupation, and be delivered over to the
defendant on the first day of October after the date of the
contract, and all the rest of the work on the first day of December
afterward. The defendant agreed upon her part to pay the plaintiff
for the performance of the work, and for the materials furnished,
twenty-four thousand dollars by installments: five thousand dollars
on the first day of July, 1851, five thousand dollars on the first
day of October following, it being expressed in their contract
that the stores and warehouse were then to be delivered to the
defendant ready for use and occupation, and that the residue
of the twenty-four thousand dollars was to be paid to the plaintiff
on the first day of January, 1860, with interest upon four thousand
of it from the first day of May, 1851, and with interest on ten
thousand dollars from the first day of December, 1851. We do not
deem it necessary to notice the other covenants of the contract, as
they have no bearing upon the case as we shall treat it.
Page 64 U. S. 227
The suit as originally brought is an action of debt for the
recovery from the defendant of the second installment of five
thousand dollars, and for the value of certain extra work done and
materials furnished by the plaintiff for the defendant's use. The
original declaration contains four counts: first, charges the
defendant in the sum of five thousand dollars for work and labor
done, and materials furnished and used by her in the erection and
finishing certain stores and buildings in the City of Washington;
second, for a like sum paid by the plaintiff for the defendant;
third, for a like sum had and received; and fourth, for a like sum
paid, laid out, and expended by the plaintiff for defendant at her
request. The defendant pleaded to the declaration four pleas:
first, that she was not indebted as alleged; second, a special plea
setting out in detail a contract under seal, with the plaintiff,
for the erection of such buildings as are mentioned in it, and for
the completion of them -- protesting that the plaintiff had not
complied with the terms of the same and declaring that the sum of
five thousand dollars claimed by the plaintiff was the second
installment, which, by the contract, was to be due and payable to
the plaintiff on the first day of October, 1851, and denying that
the buildings were done by that day, or that any claim for the five
thousand dollars had accrued before the bringing of the suit, by
reason of any contract or agreement different from the special
contract, or for any consideration other than the five thousand
dollars claimed in the declaration. In the third plea, the identity
of the sum sued for with the second installment is reaffirmed,
payable on the 1st of October, 1851, upon condition that the
buildings and stores should be completed and ready for use by that
day -- averring performance on her part of the conditions and
covenants of the contract, and nonperformance on the part of the
plaintiff, especially his failure to complete and have ready for
use the warehouse and stores by the time specified. The fourth plea
refers to the special contract, avers performance on her part,
nonperformance on the part of the plaintiff, and especially that he
had not finished and completed the buildings and stores by the day
specified in the contract or at any time either before or
Page 64 U. S. 228
after that day. At this point of the pleading, the plaintiff
applied to be permitted to amend his declaration, and added to it
four counts. The first sets out in detail the special contract
referred to in the defendant's second, third, and fourth pleas;
avers performance generally on his part and nonperformance on the
part of the defendant. The second count is the same as the first,
down to the averment of performance by plaintiff inclusive, and
then it avers that the defendant departed from the stipulations of
the contract and required the plaintiff to do additional work and
to furnish additional materials, whereby the defendant delayed the
plaintiff and prevented him from completing the buildings by the
time agreed, which the plaintiff would otherwise have done. It is
then averred that, notwithstanding the additional labor, the
plaintiff had completed the work in a reasonable time after the
first day of October, 1851, to-wit on the 4th December following,
and that the defendant then accepted the same, whereby the second
installment of $5,000 became payable. The third count is
substantially a repetition of the original declaration, and the
fourth claims $10,000 for work and labor done, and for a like sum
laid out by the plaintiff for the defendant, from all of which his
right of action had accrued before it was instituted.
The defendant filed three pleas to the first count of the
amended declaration: 1st, that she was not indebted as was alleged;
2d, that the plaintiff had not performed the special agreement; and
3d, that he had not performed the condition precedent of the
contract, to complete the building, which he had agreed to do by
the first day of October, 1851. To the rest of the count the
defendant demurred. As the verdict of the jury and the judgment
rendered for the plaintiff are upon the first amended count,
contrary to instructions asked of the court by the defendant, we
shall not notice the subsequent pleadings and proceedings in the
case, and will confine ourselves to what we consider to have been
the legal rights of the parties under the original declaration and
the first amended count. The evidence shows that the three stores
and the warehouse were not finished by the 1st of October, 1851. It
is also proved that
Page 64 U. S. 229
the special contract had been departed from in the course of its
execution; that the defendant insisted that alterations and
additions should be made in the buildings after they were begun,
contrary to the specifications of the special contract, and that
the plaintiff had yielded to her requirements. It may have delayed
the completion of the stores and warehouse, as it increased the
work to be done; but its having been assented to by the plaintiff
without any stipulation that the time for performance of the whole
was to be delayed, it must be presumed to have been undertaken by
the plaintiff to be done, as to time, according to the original
contract. The sinking of the wall probably caused the delay, but
that cannot give to the plaintiff any exemption from his obligation
to finish the stores and warehouse on the 1st of October, without
further proof as to the cause it; nor could it in any event entitle
him to an instruction from the court that he might recover under a
count or a special contract, in which he avers that the work had
been completed by him on the 1st of October in conformity with it.
The defendant in the court below, plaintiff in error here, to
maintain the issues on her part, and to reduce the damages claimed
by the plaintiff, introduced witnesses to show that the work,
though it had been done, had not been so in a skillful and
workmanlike manner, and that the materials used for it were of an
inferior kind, especially in the construction of the store wall,
and that it was so deficient in other particulars that she had been
put to a large expense to make the buildings fit for use and
occupation, which amounted to ten thousand dollars. The plaintiff
gave rebutting testimony, and then the defendant prayed the court
to instruct the jury,
"that if the three stores and warehouse were not finished fit
for use and occupation, and delivered to her on the 1st of October,
1851, but were at the time when they were delivered wholly unfit
and unsafe for occupation, with the walls of some of them sunken
out of plumb, and cracked, and in danger of falling, so as to be
utterly untenantable, then the plaintiff was not entitled to demand
and recover in this order the said sum of $5,000, as the stipulated
installment which the special contract purports to make payable on
the 1st October, 1851,
but
Page 64 U. S. 230
that the plaintiff was entitled to recover only the value of
his work, after deducting the cost and expense incurred by the
defendant in repairing the stores and warehouse, to render them fit
for occupation, but that the plaintiff, as claimant, was
entitled only to nominal damages."
Also, if the defendant did not at any time whatever execute and
finish, ready for use and occupation, and deliver in that state and
condition to the defendant the stores and warehouse, but had
delivered them over to the defendant in a state wholly unsafe and
unfit for use, and untenantable &c., and
that the defendant
had been obliged to reconstruct the walls, and to refix the
buildings, so as to fit them for use and occupation, at her own
cost and charges, then that the defendant may recoup or deduct the
same against the plaintiff's claim for the said installment of five
thousand dollars claimed in the suit, or the value of the work done
by the plaintiff upon the stores and warehouse, but that in
all events the plaintiff could only recover nominal damages.
These instructions the court refused to give, without the
following qualifications:
"If the jury shall find from the evidence that the plaintiff,
Jones, has executed the work according to the specifications
forming a part of the contract in a skillful, diligent, and careful
and workmanlike manner, and that his performance of it was with the
knowledge and approbation of the defendant, then they should find
for the plaintiff the said sum of five thousand dollars, with
interest from the date of the delivery of the stores and warehouse
to the defendant."
The defendant excepted to the refusal of the instructions as
they had been prayed for, and to the qualifications of them as they
were given to the jury.
There is error in this instruction. The count and the plea of
the defendant, and the instruction asked, raised the construction
of the special contract, whether or not the right of the plaintiff
to recover the second installment did not depend upon the
completion of the stores and warehouse by the 1st of October, 1851;
whether that was not a condition precedent, or a case in which the
parties had agreed -- one to deliver the buildings finished,
according to the special
Page 64 U. S. 231
contract, and the other to pay the second installment
concurrently, if they were then so delivered. A failure by the
plaintiff to finish and deliver on that day is fatal to a recovery
upon the special contract. The plaintiff in the first amended count
declares upon it as such, avers his performance accordingly, and
the proof is that he had not so performed. We infer from the whole
contract that it was the intention of the parties that the
performance of the work was to be a condition precedent to the
payment of the second installment. There is no word in the contract
to make that doubtful.
The plaintiff undertook to furnish the materials and to
construct the buildings according to specifications. Part of them
were to be finished and to be delivered to the defendant on the 1st
of October, 1851, and the residue on the 1st December afterwards.
For the whole, the defendant was to pay $24,000 -- $5,000 on the
1st of July, 1851; $5,000 on the 1st of October, 1851, if the
stores and warehouse were then finished for use and occupation, and
delivered over on that day to the defendant; and if that was done,
then the balance of the $24,000 was to be paid on the 1st of
January, 1860, with the interest, as mentioned in the special
contract.
The words of the contract for payment are "in consideration of
the covenants, and their due performance." Such words import a
condition. It is difficult at all times to distinguish whether
contracts are dependent or independent, but there are rules
collected from judicial decisions, by which it may be determined.
We have tested the correctness of them by an examination of several
authorities.
"When the agreements
go to the whole of the consideration on
both sides, the promises are dependent, and one of them is a
condition precedent to the other."
Such is the case with the special contract with which we are now
dealing.
"If the agreements go to a part only of the consideration on
both sides, the promises are so far independent. If money is to be
paid on a day certain, in consideration of a thing to be performed
at an earlier day, the performance of that thing is a condition
precedent to the payment, and if money is to be paid by
installments, some before a thing shall be done and some when it
is
Page 64 U. S. 232
done, the doing of the thing is not a condition precedent to the
former payments,
but is so to the latter. And if there be
a day for the payment of money, and that comes before the day for
the doing of the thing or before the time when the thing from its
nature can be performed, then the payment is obligatory and an
action may be brought for it independently of the act to be done.
Concurrent promises are those where the acts to be performed are
simultaneous, and either party may sue the other for a breach of
the contract on showing either that he was able, ready, and willing
to do his act at a proper time and in a proper way or that he was
prevented by the act or default of the other contracting
party."
2 Parsons on Contracts, ch. 3, 189.
The first installment was to be paid on an appointed day, in
consideration of the work to be begun, and the second installment
was to be paid on a subsequent day if the work should then be
finished and delivered over to the defendant ready and fit for use
and occupation. Before that day, it could not have been demanded;
on that day, the work having been performed, it might have been.
The evidence shows that the work had not been done on the 1st of
October, 1851, and was not finished until the 1st of December.
The plaintiff avers in his first amended count that he had, on
his part, complied with his undertaking in the special contract.
The issue upon it is that he had not done so, and he gave no proof
to sustain the averment.
The evidence entitled the defendant to a verdict on that count;
but the court, without regard to the time fixed upon for the work
to be finished, instructed the jury that if the work had been done
according to the specifications forming a part of the contract, in
a skillful and workmanlike manner, or if his execution of it was
with the knowledge and approbation of the defendant, then they were
to find for the plaintiff the sum of five thousand dollars, with
interest from the date of the delivery of the stores and warehouse.
It must be obvious that this instruction makes between the parties
a different contract from that into which they had entered, and one
different from that the plaintiff had declared upon.
Page 64 U. S. 233
The plaintiff gave no evidence to support the count, but there
was evidence showing the reverse of performance on his part. For
this error in the court's instruction to the jury upon the first
amended count, we shall remand the case for another trial upon the
plaintiff's original declaration in debt with the common counts, as
in
indebitatus assumpsit.
We do not consider that the plaintiff's right to recover upon
that declaration was in any way affected by the extra work which
was done upon the requisition of the defendant, or by the increase
of materials which he furnished for that purpose, or that the
sinking of the foundation of the buildings excused him from
finishing the work by the time specified; or that the acceptance of
the buildings by the defendant as they had been constructed by the
plaintiff was any release of the plaintiff from his undertaking to
finish them in the time specified in the contract. But after that
time had passed, the plaintiff continued, with the knowledge and
permission of the defendant, and also with the knowledge of her
superintending architect, to do the work specified in the contract
and also to do the extra work and to furnish the materials
necessary for both. And when the work was done by the plaintiff,
however imperfectly that may have been, the defendant accepted
it.
The law in such a case implies that the work done and the
materials furnished were to be paid for. The general rule of law is
that while a special contract remains open -- that is, unperformed
-- the party whose part of it has not been done cannot sue in
indebitatus assumpsit to recover a compensation for what
he has done, until the whole shall be completed. This principle is
affirmed and acted upon in
Cutter v. Powell, 6 Term 320;
also in
Hulle v. Heightman, 2 East. 245, and in several
other cases.
But the exceptions from that rule are in cases in which
something has been done under a special contract, but not in strict
accordance with that contract. In such a case, the party cannot
recover the remuneration stipulated for in the contract, because he
has not done that which was to be the consideration of it. Still,
if the other party has derived any benefit from the labor done, it
would be unjust to allow him to retain
Page 64 U. S. 234
that without paying anything. The law therefore implies a
promise on his part to pay such a remuneration as the benefit
conferred is really worth, and to recover it, an action of
indebitatus assumpsit is maintainable.
Such is the law now in England and in the United States,
notwithstanding many cases are to be found in the reports of both
countries at variance with it. It was recognized by this Court to
be the existing rule in the case of
Slater v.
Emerson, 19 How. 224,
60 U. S. 239.
The difference between the rule now and in earlier times, it is
believed, has caused much of the difficulty in the establishment of
the present rule. Formerly it was held that whenever anything was
done under a special contract not in conformity with it, the party
for whom it was done was obliged to pay the stipulated price, but
that he might resort to a cross-action to indemnify himself for the
deficiency in the consideration.
Blair v. Davis, 1794,
cited in 7 East. 470.
See Smith's L. Cases, in the notes
following the case of
Cutter and Powell, 2d vol., for a
full description, historical and chronological, of the rule as it
now prevails and as it formerly was.
The rule as it now exists has been recently discussed and
affirmed in the Queen's Bench in the case of
Munroe v. Phelps
and Bell, 8 Ellis & Blackburn 739; 92 English Common
Law.
It has been the rule in the courts of New York for more than
thirty years. In the case of
Jewell v. Schroepnell, 4
Cowan 564, it was decided that if there be a special contract under
seal to do work and it be not done pursuant to the agreement,
whether in point of time or in other respects, the party who did
the work may recover, upon the common counts in assumpsit, for work
and labor done. If, when the time arrives for performance, the
party goes on to complete the work with the knowledge of his
employer, it was evidence of a promise to pay for the work. So if
the employer does not object.
This rule prevails also in Massachusetts, in Pennsylvania, and
in several of the other states. Also in Alabama, as may
Page 64 U. S. 235
be seen in the case of
McVoy v. Wheeler, 6 Porter 201.
It is discussed, with a very accurate discrimination of its
application, in the 2d vol. of Professor Parsons upon
Contracts.
In the trial of such an action, where the defense is not
presented as a matter of setoff, arising on an independent
contract, but for the purpose of reducing the plaintiff's damages,
because he had not complied with his cross-obligations arising on
the same contract, the defendant may be allowed a recoupment from
the damages claimed by the plaintiff for such loss as she shall
have sustained from the negligence of the plaintiff. Such evidence
is allowed to prevent circuity of action and to prevent further
litigation upon the same matter. It may be well to say, that the
Court allowed a recoupment in
Green and
Biddle, 8 Wheat. 1, to a disseizor, who was a
bona fide occupant of land, for the improvement made by
him upon it, against the plaintiff's damages. But such recoupment
cannot be claimed unless the defendant shall file a definite
statement of his claims, with notice of it to the plaintiff
sufficiently in time before the trial term of the case to enable
the latter to meet the matter with proof on his side.
We have pursued the case in hand further than may have been
necessary, but it was thought best to do so as the points now here
ruled have not before been expressly under the consideration of
this Court.
The judgment given in the court below is reversed, and we
shall order that the case shall be remanded to it with directions
for its trial again pursuant to our rulings in this
opinion.
