Rick v. Noble , 196 Minn. 185 ( 1936 )

The result reached by the majority makes for naught a written contract deliberately entered into by the parties involved. Respondent and his associate Roberts had agreed to do the job for $90. After they had worked a little over a day they thought that this was not enough. Accordingly they increased the contract price to $125, approximately 40 per cent. At the request of Mr. Roberts the written contract here involved was made.

This instrument is free from doubt as to meaning. There is no claim of overreaching, fraud, or mistake. Just why these men wanted a contract in writing does not appear. But it seems to me that there is a fair inference to be drawn therefrom that these men had in mind earning more than the usual hourly wage. If they were to work at one dollar per hour, why limit the total consideration? May it not fairly be assumed that these men had in mind a greater return? And what is there in the law to prevent them from doing so? Why should a working man be deprived of the right of making more than the usual hourly wage?

"The workmen's compensation act [1 Mason Minn. St. 1927, § 4261, et seq., as amended] recognizes that work may still be done under contract, no matter whether it be new construction or repairs." Lange v. American Spawn Co. 194 Minn. 342, 343,260 N.W. 298.

The only distinction between the cited case and this is that in the cited case both labor and material were to be furnished by Lange. But I can see no distinction otherwise between the cited case and this. Clearly, if a man owns material that he wishes to use either in new construction or repair work, no legal impediment can be said to exist against a provision in the contract that this material is to be used in the construction or repair. If this distinction is as vital as the majority opinion seems to indicate, it simply means that the owner of a farm cannot have a foundation under his hog house built and provide that the builder is to use sand taken from the farmer's place. This would be true also in the event a man were the owner of a pile of rocks and desired to have same used in beautifying his place, such as the construction of a rock garden. Just why he should be deprived of this right under a contract otherwise fair and free from overreaching is quite beyond me.

These men (Rick and Roberts) were experienced in this line of endeavor. It was clearly within their right to make a contract to render the service that was here required. They could put their own price upon their performance subject only to acceptance by the owner of the premises to be improved. That is what was done. Nothing else was contemplated. The manner and means in which and by which the details of the work were to be performed were entirely within the control and determination of Rick and Roberts.

True, they were to use the kind of paint and the color scheme that the realty company desired. But there is no suggestion made that there is any difference in respect of skill required or time employed in putting on the various colors. At any rate, they contracted to do that very thing. Having done so, they should be bound by it.

Let us assume that the realty company had violated its contract in some fashion making it impossible for Rick and Roberts to go forward. What would be the measure of damages? Is it not clear that these "would be measured by the difference between" $125 "and the cost of performance." Lange v. American Spawn Co. 194 Minn. 342, 343, 260 N.W. 298.

In Barker v. Bemidji Wood Products Co. 184 Minn. 366,238 N.W. 692, the cases upon this subject are discussed. It was there said (184 Minn. 368):

"The case presents the question whether the plaintiff was an employe of the defendant or an independent contractor. No definition of the relationship has been formulated which makes the solution of particular cases free from difficulty. One case may be clearly that of employer and employe; another clearly of independent contractor; and another may be perplexing and uncertain and involve a question of fact."

The facts in the instant case clearly bring it within the second classification.