US SUPREME COURT DECISIONS

Where a contractor engaged to build a house for a certain sum of money, and the owner of the house, when sued, offered to prove that there were various omissions in the work stipulated to be done, and portions of the work were done in a defective manner, not being as well done as contracted for, and filed a bill of particulars of these omissions and defects by way of setoff, this evidence was admissible.

The old rule that where a party shall have been injured either by a partial failure of consideration for the contract or by the nonfulfillment of the contract or by breach of warranty, he must be driven to a cross-action has been much relaxed in later times. The case of Withers v. Greene, 9 How. 213, referred to and reaffirmed.

Where the contract provided that if the house were not finished by a certain day, a deduction of ten percent from the price should be made, and the defendant offered evidence to prove that this forfeiture was intended by the parties as liquidated damages, the evidence was properly rejected. It would have been irregular in the court to go out of the terms of the contract. Unless the forfeiture had been expressly adopted by the parties as the measure of injury or compensation, it would have been irregular to receive the evidence where the inquiry was into the essential justice and fairness of the acts of the parties.

Where the defendant offered to prove that certain work which he, the defendant, had caused to be done by a third person was usual and proper and necessary to the completion of the house, this evidence was properly rejected. He should have proved that it came within the contract. So also evidence was inadmissible that the defendant, in presence of the plaintiff, insisted upon its being within the contract, for this would have been making the defendant the judge in his own case.

Mere acquiescence by the contractor in the defendant's causing certain work to be done by a third person will not exclude the contractor from the benefit of having further time allowed to finish the house. It was not necessary for him to make a special agreement that further time should be allowed in consequence of the delay caused by this extra work.

On 7 August, 1844, William H. Digges and William H. Van Buren entered into a contract in the City of Washington, as follows:

"It is hereby agreed between William Digges, of the City

Page 52 U. S. 462

of Washington, carpenter, of the one part, and W. H. Van Buren, M.D., of the other part, as follows:"

"First. The said William Digges agrees to build or cause to be built for the said W. H. Van Buren a house, with office, back buildings, woodhouse, stable, and privies, in the style and of the materials set forth in the following specifications, and represented in the accompanying plan, to-wit:"

"[Then followed numerous specifications.]"

"Second. That the said W. H. Van Buren is to pay to said William Digges for the house built and finished as above specified the sum of $4,600 in gold or silver current money of the United States, or its equivalent in banknotes, in the following manner; viz., $1,000 on the 1st day of September, $1,000 on the 1st of October, $1,000 on the 1st of November, and $1,600 on the day that the house is entirely finished and fit to occupy, provided that it shall not be later than 25 December, 1844, he, William Digges, to forfeit ten percent on the whole amount if said house is not entirely completed and fit to occupy at the time agreed upon, viz., December 25, 1844."

"If there should be any matters of detail or finish or matters not specified properly and usually attached to or necessary to the completion of a house such as the one above specified, such things are to be considered as included in this agreement."

"If any disagreement should occur between the parties in this agreement with regard to matters above specified, such disagreement shall be settled finally and without appeal by three persons, one of whom to be selected by each of the parties and the third chosen by the persons thus selected, and, if necessary, by lot."

"In witness whereof, the said parties have hereunto set their hands and seals this 7th day of August in the year of our Lord 1844."

"W. H. DIGGES"

"WM. H. VAN BUREN"

"Signed and sealed in presence of:"

"TH. LAWSON"

"T. P. ANDREWS"

"An additional Agreement"

"The undersigned hereby agree to the alterations of, and additions to, the above contract mentioned below, and also that this additional agreement shall in no respect invalidate the above contract except in the specifications herein contained, to-wit, that in place of 'the attic story with rooms,'

Page 52 U. S. 463

&c., as specified in the above contract, W. H. Digges is to build a third story, divided and finished in all respects like the second story, as specified above, except that the ceiling shall have nine feet pitch in the clear, and that there shall be a window on the stairway in the back wall, and a window on the gable end of the main building on the passage, each of the same size as the other windows of the story, and all to be double hung, and also a garret, floored, plastered, and divided as agreed upon, with the necessary stairways, in the best manner and with the same material employed in the second story. The passage in the garret to have a semicircular window, with a base of equal width with the windows of third story, and made to slide into a frame in the wall, and each garret room to have a window on the east gable, except the small room on the passage, which is to be fitted up as a closet, with shelves and drawers, as specified for the corresponding room in the 'attic story' of the original agreement."

"And also that for the third story and garrets as herein specified, W. H. Van Buren is to pay to W. H. Digges the sum of $525, when they shall be completed, in addition to all other payments already provided for. 'Pitch of second story to be reduced to eleven feet in the clear.'"

"Signed this 1st day of September, 1844."

"W. H. DIGGES"

"WM. H. VAN BUREN"

On the 26th of June, 1845, Digges filed an account with the clerk of the circuit court under the Act of Congress passed on 2 March, 1833 4 Stat. 659, entitled "An act to secure to mechanics and others payment for labor done and materials furnished in the erection of buildings in the District of Columbia"; and claimed the lien given by that act. The account was as follows:

Account

Dr. William H. Van Buren to William H. Digges -- DR.

1845, April 21.

To the price of the contract for building &c., on lots

11 and 12, in square 169 . . . . . . . . . . . . . . . . $4,600.00

To the addition thereto, and alteration in the plan

thereof, as per agreement of 1st September, 1844 . . . . 525.00

To additional extra work required by you to be done

on said building, not specified in said contract, or

the additional agreement aforesaid, viz.:

Paid bricklayers for extra work. . . . . . . . . . . . . . 101.71

Removing fence . . . . . . . . . . . . . . . . . . . . . . 7.00

Grading the yard . . . . . . . . . . . . . . . . . . . . . 12.00

chanrobles.com-red

Page 52 U. S. 464

Window in the gable end of main house. . . . . . . . . . . 5.00

Two closets in the office. . . . . . . . . . . . . . . . . 14.00

Two do. dining-room. . . . . . . . . . . . . . . . . . . . 15.00

Snow breakers on the roof. . . . . . . . . . . . . . . . . 6.00

Cutting three holes in parlor floor for furnace. . . . . . 1.50

Cutting <> window in gable end . . . . . . . . . . 2.50

Fixing sliding door in closet between dining-room

and kitchen. . . . . . . . . . . . . . . . . . . . . . . 20.00

Shelf connecting cases in the office . . . . . . . . . . . 6.50

To extra additional size of closet in office . . . . . . . 6.50

To two course brick additional height of third story . . . 11.50

To plastering the additional height. . . . . . . . . . . . 3.64

To extra width of three frames back of the house . . . . . 21.00

---------

$5,376.85

On the 31st of January, 1846, Digges sued out a scire facias, on which the marshal returned made known. The defendant then put in a plea of nonassumpsit, and the case went on regularly in that form, no declaration having ever been filed, but it was agreed that a declaration should be considered as if embraced by the record.

In April, 1847, the following notice of setoff was filed:

"WM. H. DIGGES v. W. H. VAN BUREN. Notice of Setoff."

"Take notice that the above-named defendant on the trial of this cause will give in evidence and insist that the above plaintiff, before and at the trial of the commencement of this suit, was and still is indebted to the said defendant in the sum of seven hundred and seven dollars for divers materials and other necessary things made, done, furnished, used, and applied in and about a certain building that the plaintiff had undertaken and contracted to build for the defendant at the County of Washington in the District of Columbia, and which said materials and things were so used, applied, done, and finished on account of, and in behalf of, at the special instance and request of the plaintiff, and also in the sum of seven hundred and seven dollars for money by the defendant before that time paid, laid out, and expended for the plaintiff by the defendant on account of and on the behalf of the said plaintiff under his contract as aforesaid and by his special instance and request, and that the said defendant will set off and allow to the said plaintiff on the said trial so much of the said several sums of seven hundred and seven dollars, so due and owing from the said plaintiff to the said defendant, against any demand of the

Page 52 U. S. 465

said plaintiff, to be proved on the said trial, as will be sufficient to satisfy and discharge such demand, according to the form of the statute in such case made and provided."

"Dated this ___ day of April, 1847."

"H. MAY, Defendant's Attorney"

"TO WM. H. DIGGES, Present"

"MEMO. A particular account of the above setoff is hereto annexed."

"H. MAY, Defendant's Attorney"

Wm. H. Digges to W. H. Van Buren, Dr., to amounts paid

1844.

Nov. 5. Charles E. Craig, for painting and penciling

front of house . . . . . . . . . . . . . . . . . . $ 40.00

Dec. 23. R. J. & W. Brown for cornicing parlors and

vestibule, and center-pieces with hooks &c. . . . 75.90

Dec. 24. Do., for plastering house . . . . . . . . . . . . . 30.00

1845.

Jan. 4. P. L. Coltman, for paving &c. . . . . . . . . . . . 109.85

Feb. 5. Thomas Curtes, for bricks and digging &c. . . . . . 40.00

Feb. 5. R. O. Knowles, for fencing walls &c. . . . . . . . . 44.55

Mar. 10. Thos. Curtes, for digging and curbing &c. . . . . . 26.26

Mar. 27. Lewis H. Schneider, for hanging bells &c. . . . . . 57.63

Apr. 3. Thos. Curtes, for screws, gravel, bricks &c. . . . . 22.21

Apr. 30. F. H. Darnell, for painting . . . . . . . . . . . . 15.00

May 2. S.W. Wheeler, for shelves and repairs and jobbing . . 13.25

May 3. F. & A. Schneider, for kitchen crane,

rings to manger . . . . . . . . . . . . . . . . . . 4.87

May 9. Do., for 4 night latches and putting on same. . . . . 5.50

May 10. Taylor, for paving, repairing gate-piers,

and pointing walls. . . . . . . . . . . . . . . . . 28.17

May 12. Hughes, for sodding and work about yard. . . . . . . 41.50

May 27. Hervey Emmert, to repairs to spouting. . . . . . . . 13.87

July 2. C. L. Coltman, for paving stable-yard. . . . . . . . 57.98

July 2. R. O. Knowles, for closets in chambers,

and repairs. . . . . . . . . . . . . . . . . . . . 58.75

Sept. Bessy, for steps &c. . . . . . . . . . . . . . . . . . 24.00

Sundry amounts paid for repairs and jobbing. . . . . . . . . 38.75

To amount paid for rent of house occupied by

defendant from 25 Dec., 1844, to 16 April, 1845. . . . . . 155.16

In March, 1847, the cause came on for trial, when the jury, under the instructions given by the court, found a verdict for the plaintiff for $1,223.21, with interest from the 21st of August, 1845, and costs.

The bills of exception were as follows: chanrobles.com-red

Page 52 U. S. 466

"Defendant's First Exception"

"

V

"The plaintiff, in support of the issue joined upon the plea of nonassumpsit, produced and proved written contracts between the parties, as follows copied in 461-463, and further offered evidence tending to prove that he had executed the work therein stipulated for, and had delivered it to the defendant, who received it without objection. And thereupon the defendant offered to prove by competent witnesses that before receiving the said work and during the progress thereof, he had objected to the sufficiency of various parts of the same as a compliance with the contract, and had communicated said objections to the plaintiff, and that there were various omissions of work stipulated to be done, and various portions of the work contracted for were done in a defective and inferior manner, and not as well as contracted for by the plaintiff, and that some of these defects were not and could not be discovered by the defendant until after the defendant had entered into the possession and use of the house, and the defendant offered to prove by way of setoff, and having filed a bill of particulars of said alleged omissions and defects and given due notice thereof to the plaintiff and of his purpose in reduction of the contract price of the whole work sued for by the plaintiff, the value of said omissions, and the difference in value between the actual work defectively executed and that contracted for, to which evidence so offered, or any of it, the plaintiff objected as inadmissible under the issue, and the court, on the objection of the plaintiff so taken, refused to admit any of said evidence for said purpose, to which refusal the defendant excepts, and tenders to the court this his bill of exceptions, which is thereupon signed and sealed this 14 April, 1847."

"W. CRANCH"

"JAMES S. MORSELL"

"Defendant's Second Exception"

"In addition to the evidence contained in the aforegoing bills of exception on the part of defendant and which are made a part hereof, the defendant, for the purpose of informing the court as to the relation and situation of the said defendant in regard to the said house and the plan and building thereof, and the said plaintiff, at the time of the execution of the contract aforesaid, and the circumstances surrounding the parties, and leading and inducing to the said contract, offered evidence by T. P. Andrews, a competent witness, and who was present at the execution of said contract and signed the

Page 52 U. S. 467

same as a witness, tending to prove that the said defendant intended to reside in the said house with his family as their permanent home; that the site of the same was selected by him on account of its great convenience to be a place of business; that the plan thereof was in many respects peculiar, and according to his own plan, and intended for his own convenience and professional habits, and that the amount of ten percent on the contract price, stipulated by the contract aforesaid to be forfeited if the said house was not entirely finished and fit to occupy, as therein provided, on 25 December, 1844, was intended by the said parties, at the time of entering into said contract, as and for the liquidated damages that would result and fairly belong to the said defendant by reason of said failure to finish the said house on 25 December, 1844, to which said offered evidence, and every part thereof, the plaintiff objected, and the court refused to hear the same, to which refusal of the court the defendant, by his counsel, excepts, and prays the court to sign, seal, and enroll this his bill of exception, which is accordingly done this 15 April, 1847."

"W. CRANCH"

"JAMES S. MORSELL"

"JAMES DUNLOP"

"Defendant's Third Exception"

"Upon the further trial of this cause, and in addition to the evidence contained in the aforegoing bills of exceptions, the plaintiff having given evidence tending to show that the said defendant, while the said house was being built, made a contract for an alteration in the style and finish of the plastering of the said house, which contract was made with a third person, and not with the plaintiff, and thereby the execution of the work on the said building was delayed beyond the said 25 December, 1844; the defendant offered evidence tending to prove that the said plastering, and the style and finish thereof, was usual and proper and necessary to the completion of the said house, and further offered to prove that at the time of the execution of the said plastering, the defendant, in the presence of the plaintiff, insisted on and required him to execute the same as a part of his contract, and that he refused so to do. To the admissibility of which said offered evidence and every part of it, the plaintiff objected, and the court refused to permit the same or any part thereof to go to the jury, to which refusal the defendant excepts and prays the court to sign, seal, and enroll this his exception, which is accordingly done, this 15 April, 1847."

"W. CRANCH"

"JAS. S. MORSELL"

chanrobles.com-red

Page 52 U. S. 468

"Defendant's Fourth Exception"

"On the further trial of this cause, and after the evidence contained in the foregoing bills of exceptions, and which are made a part hereof, the defendant offered evidence tending to prove that he had paid, laid out, and expended various sums of money to various persons other than the plaintiff for and on account of the omissions and deficiencies in the work and materials done and furnished by the plaintiff and omitted to be done and furnished by him under his said contract, and offered to prove in connection therewith that such omissions and deficiencies were in and about the work and materials furnished and done by the plaintiff under his said contract, but the said plaintiff objected to the admissibility of the said offered evidence and every part thereof, and the court refused to allow the same or any part thereof, to go to the jury, to which refusal of the court the defendant excepts and prays the court to sign, seal, and enroll this his exception, which is accordingly done this 15 April, 1847."

"W. CRANCH"

"JAS. S. MORSELL"

"Defendant's Fifth Exception"

"Upon the further trial of this cause, the plaintiff having given evidence in addition to that contained in the aforegoing bills of exceptions, and which are made a part hereof, tending to prove that he had, at the request of defendant, in addition to the work and labor and materials provided for in the said contract, done and performed certain extra work, and furnished extra materials on and about the said house and premises, and for which he claimed extra compensation and damages over and above the amount specified in the said contract, and the defendant, having offered evidence tending to prove that he did not consent to any extension of the time for completing the said house as provided by the said contract, prayed the court to instruct the jury that if, from the whole evidence aforesaid, the jury shall believe that any extra work ordered or sanctioned by defendant beyond that provided for by the written agreements did not entitle the plaintiff to any extension of time in the completion of said work, unless the jury shall find that at the time of agreeing for said work it was distinctly understood that extra time should be allowed in consequence, and then only to the extent of the time actually agreed upon, or in the absence of any agreement for a precise time, to such extent as was reasonably necessary for such extra work; which instruction the court gives, and on the prayer of the plaintiff adds thereto. But the court further instructs the jury that the defendant

Page 52 U. S. 469

is not entitled to set off in this action the sum of ten percent on the amount of the contract mentioned in the proviso in the said contract, nor any damages which may have resulted to the defendant by any delay on the part of the plaintiff in completing the said house and delivering the same to the defendant on the said 25 December, 1844. To which modification of the court and instruction on the part of the plaintiff, as above granted, the defendant excepts, and prays the court to sign, seal, and enroll this his bill of exceptions, which is accordingly done, this 15 April, 1847."

"W. CRANCH"

"JAS. DUNLOP"

"Defendant's Sixth Exception"

"And the said plaintiff, having further given evidence tending to show that after the plastering of the said house had been begun, the defendant entered into a contract with the plasterer to make cornice and center-pieces for the parlors and passage, that a delay in the work for a week was occasioned by the negotiation leading to the said agreement, and a further delay of two weeks was occasioned by the work required on the said additional plastering, and part of the same being frozen insomuch that the said plasterer did not and could not finish the said work until some days after the said 25 December, 1844, and much of the carpenters' work and the painters' was thereby postponed and delayed until after the said day; the said defendant then gave evidence to show that the plaintiff knew of the said agreement for the said additional plastering, and did not object thereto."

"And thereupon the defendant prayed the court to instruct the jury:"

" If the jury shall find, from the evidence, that any delay was caused in completing the work in consequence of the extra plastering in the parlors and passage, done under the distinct contract between the defendant and Messrs. Brown, given in evidence, and they shall further find that said extra plastering was so done with the full knowledge and sanction of the plaintiff, and without any understanding between him and the defendant at the time, that in consequence thereof a further time should be allowed for completing the building, then the plaintiff is not entitled to any further time for completing the building because of such work and the delay attending the same."

"That the forfeiture of ten percent in the contract price of the work for a failure to complete the same by 25 December, as stipulated in the written contract given in evidence, is to be held as the liquidated amount of damage for the failure

Page 52 U. S. 470

to complete the work in that time, and the defendant is entitled to a deduction of the full amount thereof from the specified price of the work, unless the jury shall find that the failure to complete the same by said date proceeded wholly from the acts or default of the defendant, so that, independently of such acts or default, he would have so completed it within said time."

"Which instructions, and each of them, the court refused to give, to which refusal of the court the defendant excepts, and prays the court to sign and seal this his bill of exceptions, which is done accordingly, this 15 April, 1847."

"W. CRANCH"

"JAMES S. MORSELL"

"JAMES DUNLOP"

"Defendant's Seventh Exception"

"If the jury shall find, from the evidence aforesaid, that the plaintiff contracted with the defendant, in writing, to build, complete, and deliver the said house to him on or before 25 December, 1844, and that the plaintiff failed so to do, and shall further find that the time for said completion and delivery was not extended beyond the said 25 December, 1844, by the agreement of the said plaintiff and defendant, or by the act of the defendant, then the plaintiff is not entitled to recover in this action."

"Which the court refused to give; to which refusal the defendant prays leave to except, and that the court will sign and seal this his bill of exceptions; which is accordingly done, this 15 April, 1847."

"W. CRANCH"

"JAS. DUNLOP"

"Defendant's Eighth Exception"

"If the jury find from the evidence aforesaid that the plaintiff contracted, by the contract of the ___ day of _____ aforesaid, and the additional agreement thereto of the ___ day as aforesaid, to build, complete, and deliver to the defendant the said house on or before 25 December, 1844, and that the plaintiff failed so to do, then the defendant is entitled to claim ten percent as a deduction on the whole amount of the contract price from the claim of the plaintiff, provided the jury shall find from the evidence that the plaintiff could reasonably have so completed and delivered the said house on 25 December aforesaid, and notwithstanding the jury may further find that the building and completion thereof were delayed by the act of the defendant."

"Which instruction the court refused to give; to which refusal

Page 52 U. S. 471

the defendant excepts, and this his bill of exceptions is signed, sealed, and ordered to be enrolled, this 15 April, 1847."

"W. CRANCH"

"JAMES S. MORSELL"

"JAMES DUNLOP"

"Defendant's Ninth Exception"

"If the jury find from the evidence that the plaintiff contracted with the defendant to build, complete, and deliver to him the said house on 25 December, 1844, and failed so to do, then the defendant is entitled to claim ten percent on the amount of the whole price of the contract, as a deduction from the plaintiff's claim."

"If the jury shall find, from the evidence, that the plaintiff contracted with the defendant, in writing, to build, complete, finish, and deliver to him the said house on or before the said 25 December, 1844, and shall further find that the said plaintiff failed so to do, and that the time for said completion and delivery was not extended by agreement of the parties beyond the said 25 December, 1844, then the plaintiff is not entitled to recover in this action."

"Which instruction the court refused to give. Whereupon the defendant, by his counsel, excepted to said refusal, and prayed the Court here to sign and seal this his bill of exceptions, which is accordingly done, this 15 April, 1847."

"W. CRANCH"

"JAMES S. MORSELL"

"JAMES DUNLOP"

Upon these exceptions, the case came up to this Court. chanrobles.com-red

Page 52 U. S. 472