Browne & Co. v. John P. Sharkey Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 1. The findings of the court below are each supported by some evidence, and therefore we cannot consider the weight of evidence introduced to support them.

2. No time for the completion of the work was specified in the contract, and it follows that it should have been completed within a reasonable time. What constitutes a reasonable time is to be predicated upon the circumstances of each particular case, and in this case we think it was competent for plaintiff to show that the work was done as fast as defendant furnished the read-ing matter which its contract required it to contribute. No delay would be unreasonable as against plaintiff if necessarily occasioned by the act of defendant.

3. The evidence, therefore, of the failure of defendant to promptly furnish copy, was admissible, not in avoidance of the charge that Head delayed the work, but to show that he promptly performed his part of the work, according to the contract, which, in effect, only required him to print matter as quickly as defendant should furnish it.

4. We do not think this is shown to be a contract for the particular skill and personal services of Head. It is not so alleged in the answer, nor is it shown in the evidence. Head's contract was to print the book and furnish the pictures. Both of these could be done by any competent artist and printer, and there is no hint in the pleadings or proof that defendant relied upon any special skill or talent of Head personally to produce the books.

To "furnish" means to supply or provide. Adjudged Words Phrases, title "Furnish." A contract to paint a picture is one of the most common illustrations of a personal or nonassignable contract, because here the value of the thing to be done is one which necessarily depends upon the peculiar skill of the artist. But, if a person not shown to be an artist should contract to furnish a picture of a certain kind, we opine that his contract would be fulfilled if he tendered one made by somebody else.

The case of Campbell v. Sumner County, 64 Kan. 376 (67 Pac. 866), cited by appellant, wherein it is held that a contract to do county printing is one made in contemplation of the special skill of the contractor, does not meet with our approval. Contracts to print books, with or without illustrations, are such as must in their very nature be performed by many hands, and, unless there is something in the circumstances to indicate the contrary the general rule should be that the contract is for a certain quality of work, and not that a particular per-son shall perform it. The case of Carter v. State, 8 S. D. 153 (65 N. W. 422), holds exactly the reverse of the Kansas case above cited, and we think with better reason.

5. In addition to this, it appears that all the illustrating work and the printing were completed before Head assigned the contract, so that, even if defendant had relied upon the personal skill of Head to produce the illustrations, it had received the benefit of that skill and supervision, and nothing remained to be done beyond the mere mechanical act of stitching the booklet with wire, which no one will contend is a process requiring any peculiar skill or talent. "Where the reason of the rule ceases the rule itself ceases." The assignment amounts to a mere assignment of an accrued cause of action in any event.

6. Plaintiff was not required to make a physical tender of the books in a complete state after defendant had notified him that it would not receive them in any event. The evidence shows a substantial compliance with the contract, and plaintiff is entitled to recover.

7. We think the court erred in allowing interest on the amount of plaintiff's claim, and the cause will be remanded to the court below, with directions to enter judgment for the amount found due, with costs and disbursements, less the interest heretofore allowed.

MODIFIED: REMANDED WITH DIRECTIONS.