Kutts v. Pelby ( 1838 )

Putnam J.

delivered the opinion of the Court. The defendant contends that where work and services are performed upon materials which belong to the operator, the property in the whole remains in him, and he cannot recover while he retains the property and possession ; but that to enable him to recover he must prove a delivery, or an offer or tender to the defendant, of the things so prepared for the defendant. And the law is unquestionably as the counsel for the defendant states it to be. But the counsel for the plaintiff insist that the plaintiff actually delivered the plans to the defendant, and that the defendant was satisfied with them. And' if the fact be so, the plaintiff is entitled to recover.

The matter in controversy is, whether this fact has or has not been proved. Now we think that the fact was well established by the evidence reported.

■ The defendant had a sketch of the front, and kept it a week, and was pleased with it. He then directed the plain tiff to make the plans. And by the direction of the defendant, his principal workman took the plans from the plaintiff, to make an estimate of the expense of the building, which was given to the defendant. It is true that the defendant did not conclude to build by those plans; but that circumstance can make no difference.

And the declarations of the plaintiff, that the defendant should not have the plans until he paid for them, or paid the bill, do not affect the plaintiff’s right to recover.

If before any delivery the plaintiff had imposed an unreasonable condition to be performed by the defendant as a condition precedent, that circumstance might have been a good defence. But there is nothing in the case to warrant such an objection. There was no condition whatever imposed when the plans were delivered, as is before stated. And the declarations, which were made after the action was commenced, were founded upon a mistake in calculating the items of the bill, and cannot be reasonably considered as affording any substantial ground of defence. The defendant has had the benefit of the services, which were performed for him at his request, and he is, as we all think, legally bound to pay for them.

Let the judgment be rendered for the plaintiff according to the verdict.