Ladd v. Patten ( 1876 )

Dickerson, J.

By agreement of counsel at the hearing before the auditor, the items in the plaintiff’s account for use of piano rigging and for interest were reserved from the consideration of the auditor and to be reported for adjudication by the court.

The auditor found that, exclusive of these items, there was due from the defendants to the plaintiff $673.25, for which sum a default was entered, and the case was reported; the default to be taken off if upon the plaintiff’s testimony, he is entitled to more in the opinion of the law court, and the case to stand for trial.

. The plaintiff was a truckman and the defendants were dealers in pianos; and all the charges in the plaintiff’s writ, except those reserved for the determination of the court, were for removing pianos and organs.

The auditor reported that the contract bet.ween the parties was that all the pianos within city limits should be moved for seventy-five cents a piece. The evidence shows that the defendants agreed to “find help” for removing the pianos, and that they did so in several instances. In such cases the defendants either paid the assistants directly, or they were paid by the plaintiff who charged the several sums to the defendants.

By the defendants’ agreement “to find help” they were bound to furnish such manual-labor on request as the plaintiff might reasonably need in addition to his own services in order to accomplish the work' of removal. If they had refused to do so, the plaintiff had the alternative of .abandoning the contract, or employing the necessary help for its fulfillment and charging the amount paid therefor to the defendant.

The evidence does not show that the defendants neglected or refused to find help when requested to do so; nor is there now any controversy between the parties as to the amount paid for help by the plaintiff. The charge in the writ that we are called upon to consider is “for use of piano rigging.” It appears in evidence that in order to facilitate the work of removal the plaintiff invented, made and used an apparatus which cost about $25. For the use of this apparatus he has charged fifty cents in each instance, amounting in all to $225.50. The testimony shows that the use of “the piano rigging” saved considerable manual labor— the witnesses differing somewhat in their estimate of the amount thus saved.

Yfe do not think that the plaintiff is entitled to recover upon this item in his account. The agreement was to find help, that is, manual labor. There was no agreement express or implied to pay for the use of apparatus of any kind ; no mention was made of the piano rigging. The testimony shows that the defendants had a contrivance of their own which they used to advantage for the same purpose. It is reasonable to suppose that they would have made provision for the use of their own implement, if they had contemplated that they would be liable for the use of any such gear. The damages for failing “to find help” a,re direct and easy to be ascertained; they are what it reasonably cost the plaintiff “to find the help” himself. On the contrary, the method of ascertaining the value of the use of the piano rigging is indirect and secondary; involving, in the first place, the cost of the help the defendants were required to furnish, and then the amount saved by the use of the apparatus. The use of the piano rigging was made at the plaintiff’s own motion and risk, and entirely outside of the contract; the minds of the parties never met in any agreement express or implied, to pay for its use ; and there is no implication of law arising from the facts in this case that renders the defendants liable therefor.

■ The elements necessary to entitle the plaintiff to interest on the items in his account are wanting. There was no agreement to pay interest, nor was there any demand of payment, or what would be equivalent thereto. Default to stand.

AppletoN, C. J., Danforts, Virgin, Peters and Libbey, JJ., concurred.