Norton v. Browne , 89 Ind. 333 ( 1883 )

Morris, C.

The appellant sued the appellee for work and labor performed in the erection of a dwelling-house.

The appellee answered the complaint in ten paragraphs, embracing set-offs, counter-claims and matters in avoidance.

The seventh paragraph of the answer alleged that the house had been erected by the appellee under a special contract, by which he agreed to build the same for $375; that after the house had been erected a dispute arose between him and the appellant as to whether the work had been done in a skilful and proper manner; that their differences as to the character of the work had, by agreement, been submitted to two arbitrators, mutually chosen by them; that said arbitrators had made their award, allowing the appellee $25, and given the parties due notice of their award; this award the appellee offered to set off, etc.

The third paragraph of the reply averred that the arbitrators met at the place and time agreed upon, but did not then proceed to make their award, but adjourned to meet at the house erected by the appellant for the appellee, on a subsequent day; that they met according to adjournment, the appellee being present, but that the appellant was not present; that the appellee induced the arbitrators to make said award by making false representations to them as to the work to be done by the appellant.

A demurrer was sustained to this paragraph of the reply. Issues were finally joined on the several paragraphs of the answer. The cause was submitted to a jury, who found in favor of the appellant.

The appellant moved for a new trial. The motion was overruled, and final judgment rendered on the verdict.

The errors assigned are thirty-five in number, involving the ruling of the court upon the demurrer to the third paragraph of the reply, and upon the motion for a new trial.

It does not appear from the reply that the appellant was not present at the first meeting of the arbitrators, nor that he was prevented from attending the second meeting through want of notice of the time and place of such meeting, nor because of any misconduct on the part of the arbitrators or the appellee. Under such circumstances, he can not avoid the award upon the assumption that his adversary took a false view of the matters in controversy or misrepresented the facts;, he should have been present and have shown the arbitrators that the statements of his adversary -were not true. The court did not err in sustaining the demurrer to the reply.

The appellant insists that about one-half of the seventy charges given to the jury by the court of its own motion misstate the law.

The point mainly contested upon the trial seems to have been as to whether the work was performed under a special contract for a fixed price, as claimed by the appellee, or whether the contract claimed to have been made between the parties had been abandoned, and a dwelling-house, differing from that, provided for in the contract, had been erected by the appellant for the appellee.

Upon this point the thirtieth charge given by the court was as follows:

“ If it appears from the evidence that a contract had been originally agreed upon between the parties -which prescribes, the manner in which the house is to be constructed, and providing for its several details as to rooms, doors, windows, stairs and finish, and if you further find from the evidence that a house was afterwards constructed by the plaintiff for the defendant ; but if you further find from the evidence that there-is a difference between the house described in such contract, and the house as finally constructed, and that the difference between them is so great that all traces of the original design in general and in details are so far lost that the one can not serve as evidence of the identification of the other, and then, if it appears that these changes were directed by the'defendant from time to time as the work progressed, you may consider all this as a circumstance tending to prove that such original contract had been mutually abandoned by the parties.”

We think there is error in this instruction; it does not go far enough. The facts assumed in the instruction constituted-not simply a circumstance to be considered by the jury as-tending to prove an abandonment of the contract, but an actual abandonment of it. If, as assumed by the court,, the contract could not be traced in the building actually erected, nor made to serve for its identification, it would-be difficult, if not impossible, to perceive upon what principle-it could be resorted to for the purpose of determining the rights of the parties growing out of the erection of the building. If the building could not be identified by the contract —if there was no trace of the contract to be found in the building — it would seem to be quite clear that the one could have no relation to the other. Where, as the instruction assumes, the building erected by the contractor, under the direction of the employer, is so different from that provided for in the contract that the one can not be identified by the other, the conclusion that the parties have abandoned the contract is irresistible.

Where parties enter into a contract for work and labor, and in doing the work there is a departure from the contract, mutually assented to by the parties, the contract may still be used to determine the value of the work so far as it can be followed, but no further. Wolcott v. Yeager, 11 Ind. 84; DeBoom v. Priestly, 1 Cal. 206.

As the case must be reversed for error in the above charge, we will not notice the other errors complained of.

Per Curiam. — Upon the foregoing opinion, it is ordered that the judgment below be reversed, at the costs of the appellee.