Bannon v. Overton , 1 Tenn. Ch. R. 528 ( 1873 )

The Chancellor :

On the 5th of August, 1872, a de-cretal order was entered in this cause, ‘ ‘by consent of parties,” directing the clerk and master to take proof and state an account between the complainant and defendant “of all matters arising under the bill and answer,” and report the same to the court, there being in the order no settlement of the rights of the parties, and no reservation of any question of law or fact for the consideration of the court.

Under this reference the clerk and master made his report on the 18th of October, 1872. Both parties filed exceptions, the complainant, because the clerk and master “failed to allow the last shipment of material,” and the defendant, because “the work done and delivered” is assessed too high, and because the complainant is allowed too much interest.

On the 9th of Nov., 1872, the cause was heard by the then Chancellor upon the report and exceptions, upon consideration whereof he was of opinion that the master “ ought to take proof and report to the eourt the value of the articles furnished by the complainant and used by defendant, or that came to the hands of the defendant according to the contract,” and he referred the case back to the master for this purpose, and directed him in taking the account to “disallow interest during the continuance .of the late civil war.” The question whether interest should be allowed since the war, was reserved.

The clerk and master has taken additional testimony and made his report to this term of the court, and both parties have again filed the same exceptions. .

The parties, by these proceedings, have voluntarily limited the litigation to the points raised by the exceptions. After having once, had a hearing on the merits upon points selected by them, and a decision, they would not be permitted to go outside of these points and raise new issues, even if the}^ sought to do so. But they do not, in fact, seek to make new issues by the exceptions filed to the new report. The exceptions are the same now as they were before. • It is only in the argument that a change of base has been aimed at, and this rather by attempting to enlarge the scope of the exception than by going outside of it. It is clear, moreover, that the parties are bound by the Chancellor’s decree as far as it goes. That decree, in substance, is that the complainant is entitled to “the value of the articles furnished by complainant and used by defendant, or that came to the hands of the defendant according to the contract,” but not to interest on that value during the continuance of the late civil war. I think the decree must be held conclusive on these points (although the wording of it is not distinctly positive), because the reference ordered upon it would have been otherwise utterly useless, and because there is no reservation of these points for further consideration, as there is in regard to the interest accruing since the war.

Treating the decree as settling the rights of the parties, and considering the litigation as limited to the points made by the exceptions, the complainant’s exception cannot be sustained. The decree is that the complainant is entitled to the value of the articles “ used by defendant, or that came to the defendant’s hands according to the contract.” The clerk and master has, in his report, allowed the complainant the value of all articles “used by defendant.” The complainant admits this in his deposition, and the fact is conceded by the form of his exception. The only question, therefore, is whether the last shipment of material “came to the defendant’s hands according to the contract.” Upon this point, the evidence is against the complainant. The defendant swears that it never came to his hands at all, and tbe complainant fails to show that it did. He proves that it reached Nasbville, and tbat be saw it at tbe depot of tbe railroad, but, although here in person, he neglected to see to tbe delivery of tbe material to tbe defendant, or even to notify him, or any person for him. This was gross negligence, and utterly inexcusable. The only ground be can stand upon is tbat, under tbe contract, the mere fact of delivery at tbe depot was delivery to tbe defendant. But, even if this were technically a delivery in law, under tbe wording of tbe contract, which is tbat the material shall be “delivered in Nasbville,” it would not meet the requirements of tbe decretal order, which is tbat tbe material “came to tbe defendant’s bands.” The Chancellor manifestly intended to charge tbe complainant with only such material as was used by him, or actually, not constructively, received. Moreover, tbe further requirement is that it came to his bands “ according to tbe contract.” But the contract was for material to be used in tbe erection of tbe Maxwell House, and to be satisfactory to tbe architect, and there is a clause in tbe contract inflicting a penalty of one hundred dollars for each day’s delay. It is true, this is a penalty which this court would not enforce except to tbe extent of tbe damage actually sustained by tbe delay, which is shown to have been only about one hundred dollars. Tbe complainant is, however, seeking relief actually at tbe bands of tbe court, and must show compliance with bis contract, if be wishes to make tbe defendant pay for what be has never actually received. His own testimony is express tbat bis last shipment was to supply condemned material. “Sometime in July,” be says, “I received from Rogers & Son a letter telling me what pieces bad been condemned, and they are tbe pieces I shipped in September.” If then he bad sent material “ according to tbe contract,” tbat is, good work and according to tbe plans of tbe architect, tbe last shipment would have been unnecessary. Under these circumstances, when tbe proof shows tbat tbe last shipment came too late to be used during tbe erection of tbe building, and does not show affirmatively that it “ came to the hands of the defendant,” it would not be equitable to charge the latter with it. For these reasons the complainant’s exception must be disallowed.

The defendant’s exceptions must share the same fate. The point is that the work is “assessed too high.” The only proof, however, of the value of the work is contained in the depositions of Bannon and Stockell, and .the clerk and master has taken the lowest figures. The argument of defendant’s counsel is that the complainaiit was bound to abide by the estimate of the architect, and the architect on the 18th of July, 1861, put a lower value on it. But the Chancellor, in his order of the 9th of November, 1872, goes upon the ground that the complainant was not bound bythe estimate, for it was then before him, and the reference was utterly useless if the estimate were conclusive. Moreover, the statement of the architect is only of the value of the material “put in” the Maxwell House at the time (18th of July), and non constat that other material then on hand, or subsequently received, was not afterwards “ put in.” . The claim set up in argument that defendant ought to be allowed damages for delay in the delivery of material and the actual cost of now putting in such material, however just in itself, cannot, it is clear, be entertained upon an exception that the work is assessed too high. This would require a more liberal construction than the court is inclined to give, or can give upon the settled rules of exegesis.

• The exception as to the interest since the war is not pressed by the learned counsel of the defendant himself, and would be, under the circumstances, a hard measure of justice.

The exceptions will be disallowed and the report confirmed.