Reynolds v. Jourdan

The opinion opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.

1. Where the entire performance of a special contract has been prevented by one of the parties, or where its terms have been afterwards varied by the agreement of both parties, the action for the amount due for work and labor should be in the form of indebitatis assumpsit, and not upon the contract. In such ease the contract may be introduced in evidence by either party as an admission of the standard of value, or as proof of any other fact necessary to the recovery, and should be allowed . to go to the jury whenever it can aid them in attaining a sound conclusion.

2. There was enough evidence on the part of the plaintiff to be submitted to the jury, and the Court below was correct in refusing the non-suit.

3. The Court correctly ruled out the portion of BushnelPs testimony which was excepted to because he was not a mechanic, and not such an expert as to make evidence of his opinions about the masonry of the building.

4. The question to Carlisle might have been properly allowed, but its refusal has done no harm. It was asked upon the theory that the work [112]of plaintiff was unskillfully done. The jury have found against this theory altogether, and therefore the error, if any, has been cured.

5. There was no sufficient predicate for the admission of Ralston’s testimony as to the lost receipts. He did not know in whose hand the receipts were written, and could, therefore, give them no verity. His evidence was properly excluded.

6. Ordinarily, as a.general rale, Courts are to give construction to written contracts, but this rule is frequently departed from, where the contract relates to the mechanic or scientific arts. In such cases it is common and prudent to admit the opinions of experts to explain the contract, and where the evidence otherwise tends to limit or enlarge the apparent meaning of the words used, the opinions of witnesses, who are in the habit of making and executing such contracts, are almost indispensable. Here the dispute was about the roof. It seems that the roof was put in proper order for tinning; that the defendant received the key and accepted the building, but refused to pay the balance due for the work, upon the single ground that the iron blinds and shutters Were not put up, which, by a special provision in the contract, was only to be done upon their arrival from New York; that immediately after-wards defendant had a tin roof put on.