If A. agree under seal to do certain work for B. and does part,
but is prevented by B. from finishing it according to contract, A.
cannot maintain a
quantum meruit against B. for the work
actually performed, but must sue upon the sealed instrument.
Wherever a man may have an action on a sealed instrument, he is
bound to resort to it.
Error to the Circuit Court for the District of Columbia in an
action of assumpsit brought by Preston against Young upon a
quantum meruit for work and labor.
At the trial below, the defendant, Young, offered in evidence a
sealed agreement between the parties, and offered further evidence
that the work and labor for which this action was brought were done
in consequence of that agreement, and prayed the court to instruct
the jury that if, from the evidence, it should be of opinion that
the said work and labor was done in consequence of the sealed
agreement, the action of assumpsit would not lie, which instruction
the court refused to give, evidence having been offered to the jury
that the plaintiff was prevented from completing the work mentioned
in the agreement by the defendant, who employed another person to
finish it.
But the court instructed the jury that if from the evidence it
should be of opinion that the plaintiff was prevented by the
defendant from proceeding to complete the said work according to
the said agreement in a reasonable time, then the plaintiff had a
right to recover in this form of action from the defendant as much
money as the plaintiff deserved to have for the work done by him
for the defendant, although the same was done in consequence of the
said agreement and although the whole work mentioned in the said
agreement was not completed. To which refusal and instruction the
defendant excepted, and the judgment below being against him, he
brought his writ of error.
Upon the opening of the case, this Court, without argument,
reversed the judgment.
Page 8 U. S. 240
On a subsequent day, C. Simms, one of the counsel for the
defendant in error, not having been present at the opening of the
case, was permitted by the court to cite authorities in support of
the opinion of the court below, and cited the following:
Towers
v. Barrett, 1 T.R. 133, where it was decided that assumpsit
for money had and received will lie to recover money paid on a
contract which is put an end to, as where, either by the terms of
the contract it is left in the plaintiff's power to rescind it by
any act, and he does it, or where the defendant assents to its
being rescinded. In that case, the counsel for the defendant
admitted that when the party has done anything to preclude himself
from going into the contract, then money had and received will lie.
Buller, J., said
"The defendant left it in the power of the plaintiff to put an
end to the contract. If the contract be open, the plaintiff's
demand is not for the whole sum, but for damages arising out of
that contract."
So in
Giles v. Edwards, 7 T.R. 181, there was a special
contract between the plaintiff and the defendant, which the
defendant had prevented the plaintiff from completing. The court
was clearly of opinion, that
"as by the defendant's default the plaintiffs could not perform
what they had undertaken to do, they had a right to put an end to
the whole contract, and recover back the money they had paid under
it."
So here Simms contended that as the defendant had prevented the
plaintiff from completing the contract, the plaintiff had a right
to put an end to it. If he had paid money under the contract, he
would have had a right to recover it back, but as instead of
advancing money, he had done work and labor which could not be
recovered back in specie, he had a right to recover its value.
So in 1 Powell on Contracts 417:
"If he who is benefited by another's fulfilling his contract or
agreement is the occasion why it is not carried into execution, the
contract or agreement is thereby entirely dissolved and the party
bound discharged from his obligation."
But notwithstanding these authorities, the court adhered to its
first impression, some of the judges saying
Page 8 U. S. 241
that the plaintiff had a clear right of action upon the sealed
instrument; he might aver in his declaration that he had in part
performed the work and was ready to do the rest, but was prevented
by the defendant. And whenever a man may have an action on a sealed
instrument, he is bound to report to it.
Judgment reversed.
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