Opinion
No. 32553.
February 1, 1937. Suggestion of Error Overruled March 1, 1937.
1. CONTRACTS.
Whether contract is divisible, or is entire, cannot be determined by single term or sentence, unless by surrounding circumstances it is shown that intention of parties was that contract should be entire and indivisible.
2. CONTRACTS.
Covenants in contracts will be deemed dependent unless intention of parties is gathered from whole instrument so clearly as to make it independent.
3. CONTRACTS.
All stipulations in contract are presumed dependent.
4. CONTRACTS.
Contract for repair of garage, specifying in detail work to be done, such as repairing roof and fixing walls for certain price, and providing that payment should be made when work was completed, held entire and not a divisible contract, and hence owner of garage was not liable for repairs, where fire occurred before completion of work and destroyed garage.
5. CONTRACTS.
In determining whether contract is entire or divisible, fair test turns on whether contractor could complete part of contract and abandon rest and then recover for completed part.
APPEAL from circuit court of Jefferson county. HON. R.E. BENNETT, Judge.
Harold Cox and Aubrey Fulton, both of Jackson, for appellant.
The lower court erred in sustaining appellee's motion to require the appellant to elect to proceed either on the first or second count of his declaration.
Sections 553 and 569, Code of 1930; Aetna Ins. Co. v. Commander, 153 So. 877, 169 Miss. 847; Wellford Withers v. Arnold, 140 So. 220, 162 Miss. 786.
It is submitted the declaration was not duplicitous, and that the two counts thereof in the instant case under such circumstances were not inconsistent, and that the court erred in sustaining appellee's motion to require the appellant to elect between said counts.
The lower court erred in admitting any evidence of how appellant may and should have insured the property being repaired, and erred in refusing appellant's peremptory instructions.
It is the policy of the law to favor the contractor who engages to do certain repair work on an existing building for the owner, where the building is destroyed without fault of the contractor before the completion of such repairs. That is the situation in the instant case.
An inquiry which often arises in such a case is whether the contract is entire and indivisible, or divisible and separable. In 6 R.C.L., section 246, page 858, "The singleness or apportionability of the consideration appears, however, to be the principal test." In effect, the appellee requested the appellant to furnish him with the separate cost of three separate items of repair to this building. Whereupon, the appellant offered to do three separate items of repair on said building at a stated price for each item. The several items of the proposal were severally fixed, modified and changed as items in reaching the total cost. The total so-called contract price was the sum total of the added costs of the several items of repair.
The appellee admitted that before the acceptance of said offer of the appellant to do said work, that he did not have in mind having him do all of such three items of repair to said building. He might have accepted the first two proposals of the appellant and rejected the last. He might have accepted the last and rejected the first and second, or first proposal of the appellant to make such repairs, either or any item of which the appellant would have done for the stated price.
Wright v. Petrie, S. M. Ch. 282, p. 108; Whitfield v. Zellnor, 24 Miss. 663; Ramsay v. Brown, 25 So. 151, 77 Miss. 124.
One of the most certain of the single tests for determining the intention of the parties is whether the consideration on the one side is apportioned to each of the different covenants on the other, or whether the consideration on the side is the entire consideration for all the covenants upon the other side. If the consideration agreed upon for each covenant is apportioned to each covenant separately, the contract is prima facie severable.
4 Page on Contracts, page 3611, sec. 2088, and page 3616, sec. 2089; Bullard v. Citizens Nat. Bank, 160 So. 280, 173 Miss. 450; 6 R.C.L. 978, sec. 348.
Appellant did not breach his contract when the subject matter of the contract was destroyed by fire without his fault prior to the completion of the roof thereon.
A.L.I., Restatement, Contracts, sec. 460 (10), page 864, and sec. 464, page 873.
It is a policy of the law to avoid forfeitures and to so construe the contract as to afford one who has partially performed a contract, where the full performance is rendered absolutely impossible, some remuneration for his services rendered.
A.L.I., Restatement, Contracts, sec. 468, and page 627, sec. 357; Gulf S.I.R.R. Co. v. Horn, 100 So. 381, 135 Miss. 804.
Where the contract is not entire and the work is destroyed when partly completed, the builder has been held entitled to recover the installments due at the time of the destruction of the work, or the pro rata value of the material and work, as the evidence should show the contract to be, and it has also been held that he is not required to rebuild the structure.
9 C.J. 807, sec. 145 (b).
The trend of the decisions and policy of our court in such case is announced in Hickory Investment Co. v. Wright Lbr. Co., 119 So. 308, 152 Miss. 825; U.S.F. G. v. Parsons, 53 A.L.R. 122.
The rule that a party who has failed fully to perform his contract cannot recover for part performance applies only to entire, and not to severable contracts, which are, in legal effect, independent agreements about different subjects although made at the same time. There may be a recovery for a part performance of a divisible contract.
6 R.C.L. 983, sec. 351.
The appellant has not breached his contract, even if it were entire and indivisible because it was contemplated by both parties that the building would be and remain in existence until the completion of such repairs thereto.
Selected Readings on the Law of Contracts, by Mr. Justice Benjamin Cardozo, pages 950-52; 6 R.C.L., page 1007, sec. 370, and page 980, sec. 349, and pages 981-83, sec. 350.
Where the contract is for the performance of work on an existing structure which must continue to exist in order that the work may be performed, and such structure is not wholly under the control of the builder, as where repairs or alterations are to be made on a building, or where the contract is for the construction of a particular part of a house, the agreement is on the implied condition that the structure on which the work is to be done shall continue in existence and if the structure is destroyed, without fault of the builder before the work is completed, he is excused from further performance, and not only is the owner precluded from recovering partial payments made to the builder as the work progressed, but it also seems to be the well settled rule that in the absence of any provision in the contract to the contrary the builder may recover on a quantum meruit for the value of his labor and materials expended in the partial performance of the work, unless there is a statutory provision to the contrary.
9 C.J. 807, sec. 146 (2).
An exhaustive search has been made for authorities dealing with the question involved in the instant case. Frankness impels an admission that the courts of last resort of four states in the American Union support the theory of the appellee which was followed by the lower court. Where the question in the case at bar has been presented to any other of the courts of last resort in the American Union, so far as a diligent examination has disclosed, such courts have held that the contractor was entitled to recover on a contract without regard to whether the contract was divisible or entire, where the subject matter of the contract undergoing repairs was destroyed. Without unduly extending this brief, some of these authorities will be presented for the court's consideration.
Cleary v. Sohier, 120 Mass. 210; Steamboat Co. v. Transportation Co., 82 S.E. 956; Dame v. Wood, 70 A. 1081; Waldheim v. Englewood Hgts. Estates, 179 A. 19; Bell-Burke Oil Co. v. O'Neil, 242 S.W. 251; Ganong Chenoweth v. Brown, 88 Miss. 53, 40 So. 556; Angus v. Scully, 57 N.E. 674; Robb v. Parten, 226 N.W. 515; Acme Plumbing Heating Co. v. Hirsch, 236 N.W. 137; Carroll v. Boyersock, 164 P. 143; U.S.F. G. v. Parsons, 53 A.L.R. 127.
Truly Truly, of Fayette, for appellee.
If appellant was entitled to recover in this case, he was entitled to recover either on the express contract, set out in the first count, or on the quantum meruit, set out in the second count.
Carter v. Collins, 117 So. 336; Drake v. Surget, 36 Miss. 458; 1 Str. Bull. N.P. 139, 6 Term. R. 325; Gilchrist Fordney Co. v. Parker, 69 So. 290.
From all the evidence we believe it is inescapable that the contract is entire and indivisible. There is not one scintilla of evidence in the record, not a single circumstance, from which it can be logically concluded that the contract is divisible. Being an entire contract, the case of Ganong Chenoweth v. Brown, 40 So. 556, has no applicability. Counsel may argue that the insurance feature in the two cases bring them together. This contention, if urged, will not bear close analysis.
There can be no recovery on this record because the contract is entire and was not fully performed. The only matter we are now really concerned with is the case as it was presented. What might have been the appellant's rights if his counsel had elected to proceed on quantum meruit is not before the court on this appeal. There is respectable authority to the effect, if the matter had been so presented, that appellant would have been entitled to some recovery if the trial had proceeded on the quantum meruit count. The choice of proceeding on this count was offered to appellant by the lower court and he declined to do so. It is useless, therefore, to speculate on what he might or might not have been entitled to if the case had been presented on that count. We desire, however, to call this court's attention to the fact that if the suit had proceeded on the quantum meruit count, different evidence would have been admissible on both sides, a different defense would have been interposed, and a different measure of recovery would not have been applicable. In such case the recovery would not have been the amount expended by appellant, but the increase in the marketable and insurable value of the house occasioned by the labor and material put thereon.
A.L.I., Restatement, Contracts, sec. 357, page 627.
We submit, therefore, that appellant was not entitled to a peremptory instruction, as contended by counsel, because he misconceived his remedy, if he actually had one, and proceeded on contract instead of quantum meruit. He is not entitled to recover on contract because the contract is entire and was not fully performed; and he cannot recover on quantum meruit because he abandoned that count, the case was not presented to the lower court on that theory, different defenses would have been available, a different measure of recovery would have been applicable, and the jury would have had to pass thereon. To argue, in this state of the record, that appellant was entitled to a peremptory instruction in the instant case, is to ignore all laws of pleading and evidence, and to substitute in this court a different case than the one tried in the court below.
Argued orally by Harold Cox, for appellant, and by E.W. Truly, for appellee.
Appellant brought suit in the circuit court of Jefferson county for the sum of nine hundred seventy-six dollars for work performed in repairing a garage for the appellee, Charles A. Till, which building was destroyed by fire without the fault, so far as the record shows, of either the appellant or the appellee. The work had been partially completed, and the completed portion had not been inspected or accepted by appellee.
The contract for said work was made by correspondence. The first letter from appellant to appellee was a proposition to furnish all materials and labor necessary to reroof completely both one and two story roof areas with four-ply Barrett Black Diamond fifteen-year bonded built-up roof completely with all necessary flashings of galvanized base and cap (unbonded), or Barrett's seven-course plastic elastigum system of flashing, bonded fifteen years, also new galvanized scuppers cutlets, new galvanized bases for existing ventilators, new metal scupper lids, all complete for the lump sum of one thousand twenty-seven dollars and fifty cents. This letter also provided that if the same roof was wanted with a ten-year bond the sum of twenty-seven dollars and fifty cents might be deducted.
This letter also provided that if the same roof was wanted without bond the sum of eighty-two dollars and fifty cents might be deducted, and the offer was made therein to furnish all materials and labor needed to repair and replace all defective sheathing on the entire roof area for the sum of ____ dollars, no bid being made, and to furnish material and labor necessary the cement plaster on the inside and top of all parapet walls by knocking off the loose plaster and patching places where it was removed, making a complete hard protected surface on all walls, priming all surfaces with asphalt primer, and coating same heavily with a uniform coating of hot pitch, for the sum of one hundred twenty-seven dollars and fifty cents, and to cover vertical walls between one and two story roofs with galvanized corrugated roofing, with proper laps and carefully flashed around window openings, for the sum of thirty-one dollars.
Thereafter another supplementary letter was sent to appellee proposing to furnish labor and materials to do the plastering and coating of inside walls, by knocking all old plaster off of the three front and side walls, and replaster same with one-half inch cement plaster, the top of the wall to be beveled or rounded to form a watershed, and on the rear two-story part to knock off all loose plaster and replaster all places where cement was removed to make a completely solid surface of hard plaster, all to be done in a first-class manner by first-class plasterers, and to be coated with concrete primer and the top mopped with a heavy uniform coating of high melting, hot pitch, all for the sum of one hundred twenty-seven dollars and fifty cents. As an alternate thereto, this letter offered to complete the plaster work as described on the rear two-story part of the building and on the inside of the three front walls in the same manner, but to install salt-glazed terra-cotta wall coping for the sum of two hundred sixteen dollars.
On June 5, 1936, the appellant wrote another letter to the appellee confirming the agreement made by telephone, and proposing to do the work outlined in the letters of June 2, and June 3, above referred to, and providing to furnish labor and material to apply a four-ply Barrett Black Diamond fifteen-year bonded built-up roof over both the one and two story rear roof areas, with all necessary flashings around all walls, etc., of twenty-six-gauge galvanized iron base and cap flashing, also new galvanized scupper outlets, new galvanized bases for existing ventilators, new metal scuttle lid, etc., and that it was understood that no bonded flashing guaranty was to be given on the metal flashing systems or other sheet metal work, but the appellant agreed to give a personal guaranty on these items for two years. This letter further stated that before the built-up roof would be applied, appellant would furnish sheathing and carpenter labor necessary to repair defective sheathing, and to remove and replace with good lumber in such places where bad sheathing is removed, and to felt over the old roof with new thirty-pound felt, and to carry on the work in such manner as not to expose the building to the elements while the work was in progress. It was also provided that the appellant would furnish labor and material necessary to cover the vertical walls between the one and two story roof with galvanized corrugated roofing properly applied and to be carefully flashed around window openings, and should there be any defective sash, or broken glass, in these windows, this would not be included in the work. It was further provided that appellant would furnish labor and material necessary to do cement plastering and coating of top and insides of all parapet walls as outlined in the letter of June 3, and that it was understood that appellee would pay appellant, upon completion of the work, the aggregate lump sum of the following: For the built-up roof and flashing, scupper outlets, ventilator bases, scuttle lid, etc., and the necessary repairs to sheathing and carpenter work, the sum of one thousand twenty-seven dollars and fifty cents; for covering of vertical walls between the one and two story buildings, the added sum of thirty-one dollars; for the cement plastering of top and insides of parapet, and for coating with primer and pitch moppings, the added sum of one hundred twenty-seven dollars and fifty cents; or, in other words, for the complete work, as outlined, the lump sum of one thousand one hundred eighty-six dollars.
It seems that the roof and outside work was according to the appellant's view, completed on July 4, 1936, but insurance guaranteeing same had not been obtained, and the work had not been inspected, and no payment had been applied for as the work progressed, and the inside work had not been begun.
The appellee refused to pay for the work on the ground that the contract had not been performed, and that he would only become liable when the work was completed and the contract carried out in full.
It appears from the evidence that prior to the work, the building had been insured for twenty thousand dollars, which was later reduced to fifteen thousand dollars, and later to ten thousand dollars. The testimony of appellee also showed that prior to its destruction the building was worth largely in excess of ten thousand dollars, and that he suffered a loss on the building in excess of this insurance, and that neither he, nor the appellant, had procured any insurance for the work as it was being done.
It is the appellant's theory that the contract is a divisible one, and that it was entitled to recover one thousand twenty-seven dollars and fifty cents for the work done, less eighty-two dollars and fifty cents for insurance which the appellant was expected to furnish under the contract as a guaranty that the roof would last for fifteen years.
The appellee insists that the contract was an entire one, and that no liability would accrue until the work was fully completed in accordance with the contract.
Whether the contract is divisible, or is entire, cannot be determined by a single term or sentence, unless by the surrounding circumstances and good sense it is shown that the intention of the parties was that the contract should be entire and indivisible. Ganony v. Brown, 88 Miss. 53, 40 So. 556, 117 Am. St. Rep. 731.
Various covenants in a contract will be deemed dependent unless the intention of the parties is gathered from the whole instrument so clearly as to make it independent. Peques v. Mosby, 7 Smedes M. 340; Robinson v. Harbour, 42 Miss. 795, 97 Am. Dec. 501, 2 Am. Rep. 671, which overruled McMath v. Johnson, 41 Miss. 439.
The presumption is that all stipulations in a contract are dependent. New Orleans N.E.R.R. Co. v. Poplarville Sawmill Co., 132 Miss. 757, 96 So. 467.
Applying the principles announced in these decisions to the case at bar, we are of the opinion that the contract is an entire and not a divisible one. We think it was within the contemplation of the parties that the contract was to be fully performed by the appellant before the appellee was to be called upon to pay for the work, and that the appellee was not responsible for the value of the work done which was destroyed by fire.
We also think that a fair test of determining whether the contract was entire or divisible would turn upon whether the contractor could complete a part of the contract, and abandon the rest, and then recover for the completed part. If it was a divisible contract in part, and an independent one in another part, the contractor, when one part was completed, could recover therefor, although he refused to carry out his contract as to the other parts.
There are cases in other jurisdictions which hold to the contrary, but it seems to us that the above decisions govern here, and that it is not necessary to review the decisions of other states which may turn upon local statutes, or other considerations, not applicable in this state.
The judgment of the court below, being in accordance with these views, is affirmed.
Affirmed.