Howard v. Wilmington & Susquehanna Rail Road , 1 Gill 311 ( 1843 )

Stephen, J.,

delivered the opinion of this court.

This suit was instituted in the court below upon two contracts, the one bearing date in the year eighteen hundred and thirty-five, and the other in the year eighteen hundred and thirty-six. Tfie appellee, the defendant in the court below, filed several special pleas to tfic plaintiffs declaration, which contained several counts; and to those pleas the appellants, who were the plaintiffs, demurred generally. The defence of the defendant was founded, upon an alleged extinguishment of the contract of 1835, by the operation of the contract of 1836, which, it is admitted by the parties, covered a part of the work to be done under the contract of 1835, and for which a different price was to be paid. The suit being upon the contract of 1835, for the recovery of damages, for not being permitted to execute it by the wrongful acts and doings of the defendants, if the defence of the defendants is well founded, that it was extinguished, either wholly or partially, the action on the contract itself, which was an entire one for the graduating the road from Charlestown to Havre de Grace, for twenty-four cents per cubic yard, cannot be sustained. To repel the inference of an extinguishment, either general or partial, of the contract of 1835, the plaintiffs aver in their declaration, that the contract of 1836 was entered into by them with an express understanding on their part, and that they so declared to the defendants at the time, that the contract of 1835 was not waived or abandoned by that of 1836, except so far as the road covered by the first contract was embraced by the second ; and the plaintiffs contend that the silence of the defendants, when so informed, was evidence to go to the jury from which their assent might be inferred. But, according to the established principles of pleading, the fact of assent ought to have been aver-ed, and not the evidence of it, (if the evidence stated was admissible to control or vary the written contract,) which is always matter for the consideration of the jury, and not for the decision of the court. See GouWs pleadings, 152, where it is said “all facts essential to the right of action or the defence must in general be expressly and substantively alleged. Hence stating the mere evidence of a material fact is not sufficient; the fact itself must be stated, otherwise the allegation will present no subject to which the law can be applied. Besides such a mode of pleading would, if admissible, refer the matter of fact in question to the court, instead of the jury.” He there puts the case of an action of trover, where the plaintiff alleges a property in the goods, the loss, the finding, and a demand and refusal, but omits to aver a conversion, and says the declaration would be ill. This being a suit upon the contract to recover damages, and the contract being entire and indivisible, the suit cannot be sustained, if any part of it has been annulled by the act and agreement of the plaintiffs themselves; and looking to the pleading in the case, as spread upon the record, we are bound to assume that a part of it was annihilated by the consent of the plaintiffs themselves. In Chitty on Contracts it is said to be “a general rule that an entire contract cannot be apportioned ; and if a party undertake to complete a certain act, before his claim to remuneration is to accrue, he cannot recover for a partial performance, although the completion was prevented by accident, as fire, &c. To the same effect this court have decided, in 6 Harr. & John. 44, where they say, “ The agreement formed an entire contract, and to enable the plaintiff to recover on it he must prove a performance, or tender to perform every thing required by it on his part to be performed.” The contract being vacated and rendered legally inoperative in part by the consent of the plaintiffs themselves, the conclusion is inevitable that no action can be sustained upon it for the recovery of damages, on the ground that the plaintiffs were prevented by the wrongful act of the defendants from fulfilling it. Where the original contract is rescinded by the parties, after it has been performed in part, either by a waiver of the performance of the balance of the contract, or entering into a new one so inconsistent with the first as to be wholly irreconcilable, in such case a recovery may be had for the part performance on a general count, but not by declaring on the contract itself. To this .effect is the case in 6th Harris & Johnson’s Reps., 38. If the entirety of the contract is disaffirmed by receiving a partial benefit, the plaintiff may recover for the work done on a general count, but not on the special agreement, (Chitty on Contracts, 273.) The same principle is to be found recognised (if authorities be necessary for so plain a proposition) in 12th John. Reps. 165. In that case the plaintiff “agreed to work for the defendant ten and a half months, and spin yarn, at three cents per run; and afterwards left the service of the defendant, and brought an action against him for spinning 845 runs of yarn, at three cents per run; it was held that the contract of the plaintiff was entire and must be performed as a condition precedent before he could bring an action against the defendants for the price of his labour.” The suit upon the second contract of the 12th of July, 1836, we think ought, upon the pleadings in the case, to have been sustained. It is a rule in pleading that “each party tacitly admits all such traversable allegations on the opposite side, as he does not traverse. For, as each party is allowed to deny, in some form, (either by a general or precise traverse,) all material facts alleged against him, the omission by either party to traverse any such fact, alleged by his adversary, is justly considered as an admission of it.” Gould’s Pleading, 152.

It appears by the fourth count of the plaintiffs declaration that the defendants were in default in not paying them a large sum of money according to contract, which was due according to the estimate of the engineer for work done in the month of December 1836, which was due and payable before the contract was declared to be forfeited ; and also that they refused to permit the engineer to designate or point out a place where the surplus earth arising from the excavations was to be deposited ; and also refused to pay the plaintiffs one other sum of money for extra hauling beyond a certain distance, as specified in their said agreement, and artfully and fraudulently contriving to impose upon said plaintiffs by forcing them to submit to an alteration of the terms of said agreement or to be deprived of all the benefits and advantages to which they were entitled under the same, declared the said agreement to be forfeited, and refused to comply with the terms and conditions thereof, whereby the said plaintiffs were thrown out of employment, and fraudulently prevented from completing, &c., and have lost all the gains and profits, &c.

In the plea filed by the defendants to this count of the plain tiffs declaration, these breaches of the contract on their part arc not denied, and of course, according to the established principles of pleading, they are to be taken and considered as admitted. Such being the state of the pleadings, and the admissions of fact flowing from them, it follows as a necessary consequence that such annulling of the contract was a breach thereof, for which the plaintiffs had a right to recover the damages flowing therefrom, and also for the damages resulting from the previously enumerated breaches of the agreement. It was not necessary to aver damages in the plaintiffs fourth count. In 1st Saunders on Pleading and Evidence, 165, it is said; “If the contract be broken the plaintiff will be entitled to some damages, however small, whether they be stated or not, for damages will be implied from the very breach itself; and wherever the damages sustained necessarily and naturally arise from the breach complained of, and may therefore be implied, they need not be stated; otherwise they must, in order to prevent the surprise on the defendant^ which might otherwise ensue at the trial; and if he do not state them particularly he will not be permitted to prove them in evidence.” In the same book, at page 513, it is said : “Where damages are the principal object of the action the declaration should conclude ‘to the damage of the plaintiff*’ of a sum sufficient to cover the real damages sustained.” So, also, same book and same page, speaking on the same subject, it is said : “An omission in stating damages, when necessary, would be bad on demurrer, and perhaps after judgment.” So, also, in 2d Johns. Reps., 149, it is said : “The damages sustained are matter of evidence, and need not be alleged, nor are they rarely ever stated, but in a general manner.”

In this case the plaintiffs declaration concludes in the usual manner, and charges that they “-have sustained damages to the amount of fifty thousand dollars, to wit, at the county aforesaid, and therefore they bring their suit, and so forth.” This general conclusion is sufficient asdo all the counts in the declaration, and obviates the necessity of charging damages generally in each one of them. The judgment of the court below is reversed, and a procedendo ordered.

JUDGMENT REVERSED, &C.