Reynolds v. Lofland , 3 Del. 366 ( 1841 )

ASSUMPSIT for work and labor. Pleas, non-assumpsit; payment, c. Replications and issues.

This was an action for carpenter's work done by plaintiff for defendant, on a contract at so much per day. The plaintiff proved the contract and the number of days employed, and closed his case.

On the cross-examination of plaintiff's witness, the defendant's counsel proved the handwriting of plaintiff to a receipt to defendant "for $100, on account of carpenter's work done for him, the balance to be paid as soon as the amount is ascertained by agreement of ourselves, or by valuation."

Frame, in his behalf, now moved a, nonsuit.

Frame. — It is apparent, from the receipt already in evidence, that these parties disagreed as to the amount due for the work. In this position of affairs it was agreed, that on Lofland paying $100, on account of the work, the balance should be paid only when the amount should be ascertained in a particular manner, by the parties themselves or by valuation. This being the agreement, the present suit is premature; the debt, however much it may be, is not due or to be paid, otherwise than as agreed on. There has been no evidence of any attempt to procure a valuation or agreement. Bates. — The receipt is not in evidence. The handwriting was proved by our witness on his cross-examination, but the receipt was not given, or offered in evidence; and could not be because the time had not come for the defendant to offer any evidence. But if it were in evidence, it would not answer the purpose for which it is now attempted to be used. It is not an agreement; it is signed only by Reynolds, who received $100 and signed a receipt for it, and a valuation then being talked of, defendant added these words to the receipt, without any idea of an agreement that this should be the only mode of ascertaining the balance. This suit is the best mode of valuing the work and ascertaining the amount due. We cannot compel the defendant into an agreement, nor can we procure a valuation that would bind him without his assent. A note payable on demand may be sued upon without demand. The suit is a sufficient demand.

Frame, in reply. — The receipt is in evidence; brought in on the cross-examination of plaintiff's witness. But whether in evidence heretofore or not, it only needs to be offered to the jury to put it in evidence, for its execution is proved; and the question instantly arises which we are now arguing. For whenever or wherever the court sees that the suit has been brought prematurely — that the matter sued for is not due — the case must stop; the plaintiff must be nonsuited. This is not like a note on demand. It fixes a time of payment, not at the date of a suit, but only after a certain event; a valuation which must be shown, to have been made or at least attempted before suit brought.

This receipt is an agreement to give time of payment, and fix a mode of settlement; and it is on a consideration; the payment of $100. The suit is a violation of the agreement in reference to this very cause of action, both as to time and mode of ascertaining the balance.

The Court. — This is an action for work and labor, and the contract is proved. The plaintiff's testimony has proved a case entitling him to a verdict, and we are asked to nonsuit him on a receipt proved by defendant on the cross-examination of plaintiff's witness, but not yet read in evidence. It is no part of the plaintiff's testimony. If given in evidence it must be by the defendant, and there is no propriety in deciding in advance as to its effect, for we refuse to nonsuit the plaintiff in the present state of the case.

Frame, for defendant, then put the receipt in evidence and rested his case. Bates, in reply, offered no further evidence, but opened his ease-to the jury. He stated the particulars of his claim, amounting to $131 00 and interest. He argued that he was entitled to recover this amount, unless the plaintiff was excluded by the terms of his receipt for having brought suit too soon. Is this so? The work was done, at a stipulated price. Doct. Lofland was indebted to plaintiff at the date of that receipt in a sum exceeding $200. He was liable to a suit for that amount. The plaintiff was entitled to recover that amount at least in an action. Then what magic is to be attributed to the receipt? It was a payment in part. Would that discharge or postpone the balance?

But, even if the words of the receipt did amount to a change of the contract, and was in itself a promise, either to forbear suit or to ascertain an amount in any other way, it was void for want of consideration. The payment of the $100, was due from defendant to plaintiff on the old contract: not only $100 but $231, were due at the time. The payment of that sum was the discharge in part of a legal debt or duty, and could form no consideration for any new agreement such as is here relied on. This receipt is mere parol evidence, not being under seal; and if it was itself the ground of an action, the consideration would have to be averred and proved.

The contract arising from this receipt, if it be one, is void for want of mutuality; Lofland not being bound to submit to a valuation.

Frame. — The fallacy of the argument on the other side is in assuming that there was more than $100 due at the date of this receipt; that there was even this clue. The witness proves that the parties were disputing as to what was clue. There was no amount settled or conceded as due. Then this instrument of writing signed by the plaintiff, delivered to defendant, does amount to an agreement to do or not to do something. It does bind the plaintiff not to sue for the balanceclaimed until the amount is ascertained in a particular way. Is this nudum pactum? Why? Is it because Dr. Lofland has not signed it? Who signs a promissory note? The party to be bound by it. And this is a promise on the part of Reynolds not to sue except in a certain way; executed by E. and delivered to Lofland as obligatory on plaintiff. Does it want a consideration? Non constat that $100 was due. The whole matter was in dispute. The payment of any sum whatever, where all was in dispute, was a consideration for any promise in relation to the balance. What was the agreement here? I do not rest the case on the agreement to submit to a valuation, for it may be doubtful whether such an agreement would oust the court of jurisdiction, but 1 rest it on the agreement not to sue until the amount was ascertained in a particular way. This is a good agreement, and deprives the party of the right to sue before he has done at least what was incumbent on him to do to carry out the agreement. And it had a sufficient consideration; the payment of a sum which was not conceded to be due, except on the very terms of the agreement as to the balance. Although there may be a prior indebtedness, on which plaintiff could sue, yet the whole being unliquidated, and in dispute, the payment of any sum is a sufficient consideration to support a promise to give time for payment of the balance, or any other lawful engagement in respect to it.

Bates, in reply. — The whole amount of work was done at the time of this part payment. The receipt admits $100 to be due for the work done, and makes an agreement (they say) as to the balance. But what was the consideration of this agreement? Not any part of the $100 paid, for all of that was "on account of carpenter's work done."

Per Curiam. What is the effect of the receipt? Defendant claims that it is an agreement not to sue until the balance is ascertained by valuation. Plaintiff insists that it is no agreement for any thing, and if it does constitute any agreement, that it is void for want of a consideration. We fully accord with the plaintiff, that this agreement, if it be one, is void for want of a consideration. At the date of this receipt it is proved by evidence out of the receipt as well as by the receipt itself, that the defendant owed plaintiff $100, and something more, for work done: the sum paid was paid altogether on account of the work done, and no part of it as a consideration for any promise or agreement in relation to the balance. The plaintiff then is entitled to recover the full amount of his claim as proved, with interest from the time when it ought to have been paid.

Verdict for plaintiff.