Quigley v. De Haas ( 1881 )

MV. Justice Gordon

delivered the opinion of the court

Any material parol alteration or modification of a contract under seal necessarily constitutes the specialty part of a new verbal agreement that cannot be enforced by an action of covenant : Carrier and Baum v. Dilworth, 9 P. F. S. 406. The reason of this is obvious : the specialty, as such, no longer exists ; it has itself become but an element of the subsequent parol arrangement; but an inducement for the more recent contract, and must, therefore, be enforced by an action of assumpsit. But it by no means follows that the waiver of one or more of the stipulations of a sealed agreement produces such an effect, for in such case, the waiver neither destroys the original contract nor makes a new one, but only affects its execution. If A. should contract in writing, under seal, for a stipulated price, to build a house for B., and paint it, and B. should afterwards agree to release A. from the painting, we apprehend no one would say that there was in this such an altera; * u as would reduce the specialty to parol; for the remedy must be founded on the original agreement, seeing there is none other. There is here no substitution of new terms and conditions for the old. Both parties are held to all the covenants of the specialty, except that one which has been waived, and to' nothing else, hence, the only possible remedy is covenant. If authority for a proposition so plain as this is wanting, it will be found in the cases of McCombs v. McKennan, 2 W. & S. 216, and Ellmaker v. The Insurance Co., 6 W. & S. 439. Now, concerning the amendment made in the plaintiff’s narr., which is complained of as introducing a new cause of action; we find it amounts only to the setting out of the waiver of that part of the contract which required the judgment of John M. Mason upon the work as a condition precedent to the plaintiff’s right of payment. In other words, it sets out what the jury have found to be the fact, that if the plaintiff would do certain items of work, which both Bailey, one of the defendants, and Mason, the arbiter, pointed out as necessary to complete the job, the contract should be regarded as fulfilled and the plaintiff should have his pay. This, certainly, was not a substitution of a new agreement for the old; it was but a waiver of a single condition. So far as the substantial part of the contract was concerned, it altered it not in a single particular. It did not release De Haas from a strict performance of what he had to do about the work which he had undertaken, neither did it impose upon Quigley and Bailey what they had not previously agreed to do. We repeat, therefore, that the amended narr. does not set out a new contract, hence, no new cause of action. That the parties had the power to waive this part of their contract, was intimated in our opinion when the case was here before, but without this, that the parties to a contract may waive any part or the whole of it, if they see fit so to do, is a proposition requiring no discussion.

On this branch of the case the only remaining question is, whether there was evidence sufficient to submit to the jury from which an acceptance of the work might properly bo inferred. Do Haas swears, that at or about the time when, as he considered, the job was finished, or nearly so, Bailey and Mason made an inspection of the work, and pointed out certain things which they thought necessary to perfect the contract — such as the cutting out of some trees and the putting of some more earth on the toe of a ditch. He then asked Bailey whether the job would be.satisfactory to him when the work pointed out was done, and the answer was that it would be. He further says that under this arrangement Bailey left with the understanding that they were to have a settlement in a few days. Immediately afterwards he proceeded to finish what had been pointed out for him to do, but found that he was not able to bring Bailey to the promised settlement. He then spoke to Quigley, and told him he was afraid' there was going to be trouble, but Quigley thought not, but said he no longer had any interest in the matter, as he had sold out to Mason. Then in confirmation of this narration of. De Haas, wm have the testimony of John ’Williams, who says Bailey told him the job was a good one. It is true that this is denied by the defendants, but the jury, as they had. a right to do, believed Do Haas. With this we have nothing to do ; our question is, whether this evidence, with the attendant circumstances, was sufficient, if believed, to support the hypothesis of the plaintiff. We think it was. For why did Bailey, in consideration of the performance by De Haas of certain specific things, pointed out by himself and Mason, agree to accept and settle for the job, if ho intended to insist on the umpiresliip of Mason? He certainly thereby induced Do Haas to believe that ho had waived this part of the contract, and if he did so deliberately he ought to be held to it. His own testimony, if not confirmatory of that of the plaintiff, nevertheless, exhibits so much of unfairness, so great a disposition to prevent an impartial judgment of the umpire, that we are not surprised that the jury gave it no credence. In answer to the question whether he had not pointed out to De Haas the objectionable and unfinished parts of the work at the time he visited them in company with Mason, he says he did not, that he pointed them out to Mason. “I wanted,” he goes on to say, “ to satisfy Mr. Mason that the work was not in accordance with the contract, and went there for that purpose. I had told Mr. Mason before I went there it was not satisfactory.” Then, in answer to the question, “Your purpose was to prevent its being taken off the hands of Be Haas? The answer is, “Yes sir.” The frankness of all this is certainly admirable, but the honesty of the transaction is not so commendable. And what must we think of an umpire who would allow his judgment thus to be forestalled; who would submit to be made the mere tool of either of the parties ? IIow, after this, could the plaintiff expect an impartial judgment from, or how could a court of justice require him to resort to the decision of an umpire who had thus beeii manipulated ? Had De Haas been informed of the purpose for which Mason had brought upon the ground he might have had some slight chance for defence, but care was taken that he should not have this information, for, as Bailey says, “ I did not want to get into a controversy with He Haas.” The design seems to have been simply to post Mason on the defects of the job, and then leave He Haas to the tender mercies of an umpire who had prejudged and condemned his work. That Bailey did accomplish his purpose as to the umpire is obvious, for he says after he and Mason had ridden* over the job he, Mason, informed him that it was impossible for He Haas to crib the creek according to the contract. Under circumstances of this kind, about which there can be no doubt, since they are detailed by one of the defendants, it is idle to talk about requiring He Haas to resort to the judgment of an umpire from whom, in consequence of the manipulations of the defendants, he could obtain nothing but an adverse decision.

This conduct of Bailey forever estops him and his partner from setting up this part of the contract to defeat the plaintiff. When, therefore, the court submitted this part of the ease to the jury on the question of waiver, it not only did that which the evidence justified it in doing, but also that which was the best for the defendants, and of which, therefore, they ought not to complain.

There was exception taken to the ruling of the court in permitting the introduction of parol evidence to explain the unaerderstanding of the parties at the time of the execution of the contract, as to how the dams should bo built; but we think this was proper. By the contract these dams were to be built “in a good and substantial manner, as flood dams should be built in such streams, cribbed, sparred, puddled-ditched, calked and ■graveled.” To us it seems obvious that, in order to make this intelligible to a jury, some explanation was necessary, either from experts or from the understanding of the parties expressed at the time of the making of the contract, but of these two methods of arriving at the meaning of this agreement, the latter was the better, as being the interpretation given to it by those most interested, hence, the one which would be the most likely to express their intention.

¥e have discovered nothing else in the assignments requiring comment.

Judgment affirmed.