Carlson v. Sheehan

SHAW, J.

Plaintiff brought this action to recover the ■sum of $1715.00, alleged to be the balance due and unpaid for work done and materials furnished by plaintiff for defendant in constructing a building at defendant’s special instance and request. After the plaintiff had introduced his evidence upon the trial the court, on motion of the defendant, ordered a nonsuit. The plaintiff appeals from the judgment thereupon rendéred. .

The plaintiff and defendant entered into a contract whereby the plaintiff agreed to erect a building upon a lot belonging to the defendant for the sum of $3680. The plaintiff completed the building in part only and the defendant paid him twenty-one hundred dollars upon the contract. The remainder was to be paid on and after completion. The cost of finishing the uncompleted part of the building would have been about five hundred dollars. The claim of the plaintiff is that he was prevented or excused from completing the building according to the agreement by the conduct of the defendant. The object of the suit is to recover the difference between the value of the work done at the contract rate and the amount paid by the defendant.

[695]

We do not think there is any merit in the contention of the respondent that a recovery cannot be had upon the common •count for the value of the work and material, and that the plaintiff should have averred the special contract, the sum agreed to be paid, the performance by himself, and non-payment by defendant. Such a rule may apply where a contract has been -performed by the plaintiff, but where complete performance has been prevented by the fault of the defendant; the plaintiff may sue for the value of that which he has done under it.

The lot on which the building was erected was twenty-five feet in width fronting on Market Street and one hundred and' twenty-five feet in depth. The building was a two-story frame structure covering the entire width of the lot and running back seventy feet. The defendant did not own the adjoining lot on either side. At the time the work was begun on the contract the lot had been graded down lower than the natural surface of the adjoining lots, leaving high vertical banks of earth on each side. These banks were unprotected by retaining walls or otherwise, and were liable to slide down upon the lot and against any building erected thereon, in case of heavy rains. The contract was made on September 2, 1906, and plaintiff began the work about the first of October. At the time of making the contract the defendant was grading the lot to prepare it for the building. Plaintiff saw the condition •of the banks on each side and knew the character of the soil. He did not believe the banks would stand without support, and there was some negotiation between him and defendant about putting in a concrete retaining wall four feet high to protect them from caving or sliding in upon the building, but there was no agreement regarding it. It was agreed that plaintiff should put in a wooden bulkhead in the rear five feet in height. The defendant told plaintiff that he had contracted with the graders to slope off the banks on each side, but that the contract was not in writing and they had refused to do it. Counsel for plaintiff earnestly insist that this was said at the time of executing the contract and that it constituted an inducement or consideration therefor from which an agreement by the defendant to slope off the banks would be implied. Giving to the evidence the full force which is to be attributed to it on a motion for nonsuit, we cannot so construe it. The