Raymond v. Richardson , 4 E.D. Smith 171 ( 1855 )

By the Court.

Daly, J.

So far as can he gathered from the imperfect return made by the justice in this case, it appears to have been an action to recover for work and labor after the lien, if any had been acquired, had expired by its own limitation. If it was, the evidence was sufficient to entitle the plaintiff to recover. A witness testified that he was directed by the defendant and by Mr. Adam to employ men to work on the buildings, and that he employed the plaintiff to work on them; that he worked on them, doing carpenter’s work, from the middle of February until some time in September following, in all thirty-one weeks, and that he was to have twelve shillings a day; that Richardson was to pay for the work, and that he said that every man should be paid. It further appeared, from the testimony of the witness, that two of the houses belonged to Richardson, and that the plaintiff worked about equally upon all of them. And upon this testimony the justice apportioned the value of the plaintiff’s labor upon the seven houses, giving judgment for two sevenths of the amount claimed.

The difficulty, however, in sustaining this judgment arises from the exclusion of testimony offered by the defendant. The defendant offered to show the character of the plaintiff’s work, and that he objected to his working on the building because he was not a good workman; but the justice refused to receive the testimony, on the ground that no notice had been given in the answer that the defendant alleged the work to have been unskillfully done. The answer was a general denial of the whole complaint. This was, in effect, denying that the plaintiff did work and labor for the defendant to the value of the amount claimed. It put in issue not only the performance of the work, but the value of it. And it was competent for the defendant to show that he discharged the plaintiff, or that he notified him that he did not require his services any longer. And if the plaintiff, under a general employment by the defendant’s agent, at so much per day, continued to work, after being so notified by the defendant, he could not recover; or if he could, upon the ground that the defendant, though against his will, had received the benefit of the plaintiff’s labor, still the defendant was, undoubtedly, entitled to show what the real value of that labor was, or that it was of no value at all. The offer, it is true, did not quite come up to this. It was an offer in general terms to show that the defendant objected to the plaintiff’s working on the building, without indicating to whom the objection was made. But the testimony was' not excluded upon the ground that the offer was not sufficiently definite, hut upon the ground that under the pleadings no such defence as that the work was unskillfully done, or that it was worth less than the amoimt claimed, could be set up; and under such a ruling it was unnecessary for the defendant to make his offer any more specific, as any testimony offered, with a view to such a defence, would not have been received.

Again, the defendant was entitled generally to contest the value of the plaintiff’s labor, for the complaint was upon a qucmtum meruit, and not upon a specific contract to work for so much a day, though the testimony tended to prove such a contract; so that whether the defendant notified the plaintiff to discontinue working or not, he had the right, under the pleadings, to contest the value of the work, and" his offer to show its character was sufficient.

It is a matter of regret that we have to reverse the judgment in this cause, as the testimony was sufficient to sustain ■x finding by the justice for the whole amount claimed.

Judgment reversed.