Bishop v. Perkins ( 1848 )

: Hisman, J.

It is claimed, that the court erred in admitting evidence to prove the value of the whole work and materials done and furnished, by the plaintiffs, in the erection of the defendant’s house. The action was for materials furnished, and labour performed, in building a house ; and though claimed by the defendant to have been done under a special contract, yet, as this was denied, and was throughout a matter in dispute between the parties, it is clear that if the plaintiffs’ claim was correct, the only rule of damages must be, the value of the labour and materials furnished.

But it is said, that the bill of particulars recognises the contract as still subsisting ; and therefore, the plaintiffs ought to be confined to it, in their proof. In the second and third counts, the plaintiffs have set out their claim as specifically as the nature of it would admit. In regard to those counts, no bill of particulars was necessary. The counts themselves gave the defendant all the information that he could ask for. The bill of particulars, therefore, only applied to the first count, and ought not to limit the plaintiffs’ proof, under their special counts. To give such effect to the bill of particulars, would entrap the plaintiff’s. If, then, there was no special contract, to furnish the rule of damages, the plaintiffs, it would seem, ought to recover the value of the labour and materials furnished ; and, as we think, they could do so, under the second and third counts, without a bill of particulars, the evidence to prove such value was properly admitted.

It is next claimed, that the verdict is against the evidence in the cause, and that the damages are excessive. This depends upon whether there was proof, which authorized the jury to find, either that the special contract, shown in the deposition of Mr. Warren, had been abandoned; or, that the plaintiffs had performed the extra work, charged by them. Mr. Warren’s deposition is very strong in favour of the defendant’s claim ; and, if there was no countervailing evidence, it would seem to be conclusive. But it is to be remarked, that the question is not now, whether from a detail on paper of all the evidence in the cause, we should have found as the jury have ; but it is, whether there was such evidence, as will justify them in finding as they have done. It is said, indeed, there was an enlargement of the house contracted for, of about ten per cent, only, whereas the verdict is more than fifty y;er cent, greater than the contract price. We do not see much force in this argument here, it was, no doubt, proper for the consideration of the jury, on the trial below; but is too uncertain in its character to lay the foundation for a new trial.

To show that the special contract had been abandoned by the parties, there was, in the first place, the fact just alluded to, that the house, as it was finally erected, was very different from the house described in the contract. We have not thought it important to test the accuracy of the defendant’s estimate, of the extent of the alterations. It is sufficient that many of them appear from the testimony of Mr. Warren himself. They consist in an enlargement of the house, in its length, breadth and height, of some feet; in a change in the form of the roof, by which that part was much enlarged; in changing many of the materials of which different parts were to be constructed; in altering the form of the bay-window ; and in altering the internal arrangement: in short, the house as erected, was changed in size, in form, in arrangement, and, in many particulars, in the quality of the materials of which it was constructed. We are aware, that these various alterations were claimed to have been done, by consent of all parties; and that it was insisted, that they were not to vary the compensation. But this was the very question in dispute. The plaintiffs’ claim was, that they were all directed to be made, by the defendant, and were to be paid for as extra work, unless, indeed, the changes were so great as to justify them in charging for their labour and materials, in erecting the whole house, as a different structure from the one first contracted for, on the ground of an abandonment, by the parties, of that contract.

And we think, there was evidence tending to prove such abandonment. A dispute arose as to the terms of the contract, at the commencement. The person employed to stone the cellar, testifies, that he was obliged to stop work until they could agree; Mr. Perkins claiming, that the work was not according to the contract, and the plaintiffs insisting, that it was. The work was altered, according to Mr. Perkins’ wishes; and the plaintiffs told him, that they should charge him for fit as extra work ; he, at the time, saying, that he should give them no directions. From this commencement, during the whole period that the house was in building, the defendant was almost constantly present, superintending the • construction. He appears, indeed, to have taken the sole charge of it. Sometimes, we are aware, in speaking of the work, he compared it with the contract, as he claimed it to be. But he directed the workmen to throw away materials that he thought unsuitable, and said that he would be responsible for it. He directed as to the size of the frame, when it was found that the plans differed from the dimensions given in the contract; and caused it to be enlarged and to agree with the plan, rather than the contract; and said, that if there was any thing extra, he would pay for it. He procured materials, in place of such as he thought insufficient, tie pulled down the foundation of the bay-window, because it did not suit him ; and, from day to day, he directed in regard to the quality of the work and materials; and in some instances, as to the time when the work should be done, with the same particularity as is usual with those who employ labourers by the day. Now, taking into consideration the material discrepancies and contradictions between the contract and the plan, claimed by the defendant to be a part of it, the fact, that the house erected did not agree with either of them ; the fact, that the defendant superintended and directed, as to all the alterations ; and that the plaintiffs, in all instances, followed his directions ; and when we find, that the house, as erected, is confessedly worth 4500 dollars, when the contract price was only 2800 dollars ; we think there was evidence from which the jury would have the right to infer, either an abandonment of the original contract, or that there was a large amount of labour and materials furnished, that ought to be paid for as extra.

It is said, however, that the bill of particulars recognizes the special contract as still existing; and that the receipt of the 15th of January, 1846, is conclusive proof of this fact, and that no extra work was to be paid for, by the defendant. We do not think there is much force in the claim, as to the bill of particulars. To a certain extent, perhaps, that paper may be said to recognize the existence of the special contract. It claims payment for a house erected pursuant to such a contract, with the various alterations, also stated, and for which payment is claimed, as for extra work. This is, as we have seen, but an amplification of the first count. It does not seem, therefore, to be entitled to much weight. Besides, an examination of the evidence shows, that, whether the plaintiffs are allowed a reasonable compensation for their labour and materials, under the idea that the special contract was abandoned ; or, whether they are allowed the contract price, with a reasonable compensation for the extra work and materials, the result is the same. In neither case, is the verdict excessive. It is therefore immaterial, whether the contract was in fact abandoned, or not.

The receipt, undoubtedly, is much stronger evidence, that the plaintiffs then recognized the existence of the special contract, and that the house was erected under it; and also, that they had no claim for extra work. If the receipt was understand ingly executed, and they were fully apprised of its import, it would be difficult to arrive at any other conclusion.

The plaintiffs, however, claimed, that it was only intended by them as an acknowledgment of the amount of money which they then received ; and was not intended as an admission or acknowledgment of any thing in regard to the contract under which it was received. The jury must have found this claim to be true; and if it is true, in fact — if the Receipt was executed without a full knowledge of its contents — the plaintiff's ought not to be concluded by it. It has been held, that a receipt given for a specific purpose, cannot be used for a different purpose, in violation of the object for which it was given. Tucker v. Baldwin, 13 Conn. R. 136. This is decisive, as to any question of law being raised, in regard to the receipt. But no complaint is made of the manner in which the question was submitted to the jury ; and although we might not view the fact in the same light the jury must have done, yet we do not feel authorized to say, that the verdict is so clearly against the weight of evidence, as to justify us in granting a new trial on this ground. The receipt was drawn up by the defendant: it was in his hand-writing; and it did not appear that any person was present at its execution. The jury undoubtedly thought, that it was signed, without any attention being given to its contents, and without reading; the plaintiffs supposing, that it was a mere receipt for the draft and money then paid them. We cannot say, that the circumstances, as they appeared at the trial, did not justify this conclusion ; and we do not, there- ..... fore, advise a new trial, on any of the grounds on which it ’ . ■ & asked.

In this opinion the other Judges concurred.

New trial not to be granted.