DERMOTT V. JONES, 64 U. S. 220 (1859)

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U.S. Supreme Court

Dermott v. Jones, 64 U.S. 23 How. 220 220 (1859)

Dermott v. Jones

64 U.S. (23 How.) 220


Where there was a special contract to build a house by a certain day, which was not fulfilled owing to various circumstances, and the contractor brought a suit setting forth the special contract and averring performance, it was erroneous in the court to instruct the jury to find for the plaintiff, as the work was not finished by the appointed day, though it was completed after the time with the knowledge and approbation of the defendant.

By the terms of the contract, the performance of the work was a condition precedent to the payment of the money sued for.

The general rule of law is that whilst a special contract remains open -- that is, unperformed -- the party whose part of it has not been done cannot sue in indebitatus assumpsit to recover a compensation for what he has done until the whole shall be completed. But the exceptions from that rule are in cases in which something has been done under a special contract, but not in strict accordance with it; but if the other party derives any benefit from the labor done, the law implies a promise on his part to pay such a remuneration as the work is worth, and to recover it, an action of indebitatus assumpsit is maintainable.

The case must be remanded to the circuit court to be tried upon such counts as are in the original declaration, which charges the defendant in the sum of $5,000 for work and labor done, for materials furnished and used by the defendant in the erection and finishing certain stores and buildings in the City of Washington, and upon the money counts for a like sum paid by the plaintiff for the defendant, for a like sum had and received, and for a like sum paid, laid out, and expended, by the plaintiff, for the use of the defendant, at her request. And in such action the defendant may recoup the damages which she has sustained from the imperfect execution of the work.

This was an action of debt brought by Jones against Ann R. Dermott for the sum of five thousand dollars. The declaration contained four counts, viz.:

Page 64 U. S. 221

1. That the defendant, on the first day of July, 1852, was indebted to the plaintiff in the sum of five thousand dollars, for work and labor done and materials furnished to the defendant by plaintiff, and used by her in and about the erection of certain buildings and finishing and completing certain stores in said buildings in the City of Washington.

2. For a like sum paid by plaintiff for defendant.

3. For a like sum had and received.

4. For a like sum paid, laid out, and expended by plaintiff, for defendant and at her request.

The plaintiff below had also filed a bill on the equity side of the court, which was pending, whereupon the defendant moved for a rule upon him to elect between his said action of debt, pending on the common law side of this court against this defendant, and his said bill pending on the equity side of this court against the said defendant, as to the sum of money, to-wit, $14,000, with interest, for which a decree is prayed against said defendant by plaintiff in his said bill.

Whereupon the plaintiff says he elects to recover in this action only the $5,000 mentioned in his said bill in equity, to be paid by defendant on the completion of the said stores and warehouse in said bill mentioned, and claimed on the 1st October, 1851, with interest, and hereby disclaims all and every right or pretension in this cause to recover any portion of said $14,000.

Whereupon the court made the following order, to-wit:

"The plaintiff having made his election under the said order or rule made at March term, 1854, as aforesaid, to prosecute this action of debt for the recovery of the said sum of $5,000:"

"It is further ordered by the court that the said bill in chancery be dismissed, and the same is dismissed accordingly, quoad the said $5,000."

The reporter will not carry the reader through the following process of pleading, the mention of which will be sufficient.

It has been already stated that the declaration contained four counts. The defendant pleaded specially to the declaration setting up the special agreement &c. Whereupon the

Page 64 U. S. 222

plaintiff amended his narr., adding special counts upon the contract. The amended narr. was objected to. Objection overruled, and exception taken. The amended narr. contained the following counts:

1. On the contract alleging performance, and that $5,000 was due, stating the time mentioned in the contract, 1st October, under a videlicet.

2. Treating the time 1st October as material, averring that the plaintiff had performed his part, but that the defendant departed from the contract.

3 and 4. The common counts in debt for the extra work.

The pleas were:

To the first count, nil debet, nonperformance generally, and nonperformance specially, in not completing the stores and warehouse on or before the 1st of October.

To the second, third, and fourth, demurrers.

To the plea of nonperformance, in not completing the work on the 1st of October, the plaintiff demurred, and judgment for the demurrer.

Upon the demurrers of the defendant to the second, third, and fourth counts, demurrers overruled, and judgments for the plaintiff.

Verdict for the plaintiff on the first count, and inquisitions, with nominal damages, on the second and third counts, and for the value of the extra work on the fourth count. Judgment accordingly.

From this account of the pleadings, the reader will readily perceive the points of law which came up to this Court. But in order to make it more clear, the prayers to the court by the defendant none being offered by the plaintiff are inserted. There were five prayers, the only one of which was granted was the fourth. Numbers one and three were granted with a qualification; numbers two and five were refused.

"Fourth Prayer. If the jury find, from the evidence aforesaid, that the plaintiff so negligently and unfaithfully executed the work specified in the contract and specifications aforesaid, that, from insufficient drainage, bad workmanship, departure from the written specifications, or other acts or omissions of

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the plaintiff, in so negligently and unfaithfully executing said work, the three stores and warehouse aforesaid were damaged and injured, as stated in the evidence, then the defendant is entitled to recoup or deduct from the amount claimed in this action all damages sustained by the defendant, and resulting from said injury. Granted."

"Fifth Prayer. That under the issues joined on the first count of the amended declaration, the defendant is entitled to the verdict unless the jury shall find from the evidence that the plaintiff did finish and deliver over to the defendant the three stores and warehouse described in said written contract, ready for use and occupation on or before the 1st day of October, A.D. 1851. Rejected."

"Second Prayer. That, by the true intent and meaning of the written contract and specifications read in evidence, the said Zepheniah Jones undertook and obliged himself to finish the three stores and warehouse therein described, and deliver them over to the defendant, fitting for use and occupation, on or before the 1st day of October, 1851; and the said Jones also undertook and obliged himself to procure and supply all and singular the materials, implements, fixtures, matters and things requisite and proper for the execution of said _____, and for the complete finishing and fitting for use and occupation of said warehouse and stores. And if the jury find that the said warehouse and stores, when delivered over by said Jones to the defendant, were not fitting for use and occupation, but the same were defective, unsafe, and untenantable by reason of the cracking of parts of the walls and the settlement of portions of the store walls or otherwise, and if the jury further find that it was possible for said Jones to have constructed said warehouse and stores and to have delivered the same to the defendant fitting for use and occupation, by his furnishing additional labor, materials, matters and things, not named in said written specifications, in and about the fitting of the same for use and occupation, then the said Jones did not perform and discharge the obligation of his said contract, although the jury may believe that the said warehouse and three stores were erected and constructed in strict conformity

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to the specifications made a part of said contract, and although the cracking of said walls and settlement of said foundations may have resulted from causes wholly unforeseen by either party at the time of executing said contract and constructing said foundations and walls, and although the said cracking and settlement may have been caused by the weight placed on said walls and foundations, or some part thereof, according to the requirements of such specifications, or of additional weight placed on the same or some part thereof by said Jones, at the request of said defendant, and which additional weight was not called for in said specifications; but the court further instructs the jury that the plaintiff is entitled to recover nominal damages at all events. Refused."


"First Prayer. And thereupon the defendant prayed the court to instruct the jury, as follows:"

"If the three stores and warehouse in the contract mentioned were not executed and finished, fit for use and occupation, and so delivered to defendant, either on the said 1st day of October, 1851, in the said contract mentioned, nor at any other time, but were, at the time the same were delivered, wholly unfit and unsafe for use and occupation, with walls, or some of them, sunken out of plumb and cracked, and in danger of falling, so as to be utterly untenantable and unfit for use and occupation, then the plaintiff was not entitled to demand and recover in this action the said sum of five thousand dollars, as the stipulated installment which the said contract purports to make payable on the said 1st October, on the terms and conditions therein mentioned, but the plaintiff is entitled to recover the value of his said work, after deducting the cost and expense incurred by the defendant in repairing said stores and warehouse, and rendering them fit for use and occupation, but the plaintiff is entitled to nominal damages at all events."

"Third Prayer. If the defendant did not at any time or times whatever execute, finish, ready for use and occupation, and in that state and condition deliver over to the defendant the

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said stores and warehouse mentioned, but delivered the same over to the defendant in a state wholly unsafe and unfit for use and occupation, and untenantable, with walls sunken, cracked, and out of plumb, and in danger of falling into ruin, whereby the defendant was greatly injured and suffered great loss, by having to reconstruct the said walls in part, and repair the dilapidated condition of the building, and fit it for use and occupation at her own costs and charges, then the defendant may recoup or deduct said losses, costs, and charges, against the plaintiff's claim for the said installment of five thousand dollars, claimed in this suit, or the value of the work done by said plaintiff in and about said stores and warehouse, but the plaintiff is entitled to recover nominal damages at all events, which instructions the court refused to grant without the following qualification, that is to say:"

"Qualification. But if the jury shall find from the evidence that the said Jones hath executed the said work according to the specifications forming a part of the said contract, and in a skillful, diligent, and careful and workmanlike manner, or that his execution thereof was with the knowledge and approbation of the defendant, then they are to find for the plaintiff the said sum of $5,000, with interest from the date of the delivery of the said stores and warehouse."

"To the granting of which instructions the plaintiff excepts, and prays the court to sign and seal this his bill of exceptions, which is accordingly done, this eleventh day of November, 1857."



"To the refusal of which instructions, as prayed by the defendant, to the granting of the qualification annexed thereto, the defendant, by her counsel, excepts, and claims the same benefit of exception as if the refusal of the court to grant each of said instructions as prayed, and the granting of the same with the qualification thereto attached, were each separately excepted to; and thereupon this, her bill of exceptions, is signed, sealed, and enrolled, this eleventh day of November, 1857."



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