1806. Assumpsit. Evidence. Notice. Quantum meruit. BASTON versus BUTTER BASTON against BUTTER.-June 18th. On a quantum meruit for work and labour, the defendant may give evidence that the work was not done well; and need not be put to his cross action. Aliter where the demand is upon an agreement for a stipulated sum, and the plaintiff has no notice of the defence; because he may be taken by surprise: which cannot happen upon a quantum meruit. THIS was an action of assumpsit, for work and labour, and materials found as a carpenter; plea the general issue; which was tried at the last assizes for Exeter, before THOMPSON, B. At the trial the plaintiff proved, that he had been employed by the defendant to build him a small house, that he was at work near twelve months: the timber came from the place and the defendant found nails, and it appeared, that upon the balance, 31. 14s. 7d. was due to him; no particular sum was agreed upon. The origi nal demand was 161. and a fraction, which had been reduced by subsequent payments. On the part of the defendant, the counsel offered to prove, that the work was done in an insufficient manner; that the roof was weak, that the rafters were not sufficiently supported; and, that, therefore, the plaintiff was not entitled to recover what he now claimed. The learned judge reported that he was inclined to admit the defence, but a nisi prius case was cited to the following effect: "Browne v. Davis,* Assumpsit for the plaintiff for erecting a booth at Bath race-ground; the price was stipulated between the plaintiff and the defendani, at twenty guineas for building it; five guineas were *Taunton, 1794. paid,and the plaintiff was to take back the materials after the races. The booth was built of the stipulated dimensions, but it fell down, and Buller, J. ruled, that this was no defence to the present action,especially as there was a particular sum agreed tor." It appeared that the ground for this decision was, that, there being a stipulated price, the party only came prepared to prove the contract, and was taken by surprise, if the question came afterwards to be tried, how the work was done. The learned judge, thereupon, refused to receive the defence in this case, and there was a verdict for the plaintiff, A rule was obtained by JEKYLL for the defendant, to shew cause why this verdict should not be set aside, and a new trial had, on the ground that the above defence ought to have been admitted in evidence. LENS, Serj. now shewed cause, and relied upon the cited case, and upon the surprise which the defence was upon the plaintiff, and urged that the party should be left to his cross action. Lord ELLEN BOROUGH, C. J. referred to a case of Morgan v. Richardson, from memory, which appeared to be decided on another point.* Of this case the Editor took the following note, which is inserted in the publication called the LAW JOURNAL, by T. W. WILLIAMS, vol. 2, page 237. Morgan v. Richardson. 4. bought goods of B. and gave a bill of exchange for the payment thereof. Upon their being sent to his order, they were found not to answer: instead of returning them, A. sold them at a reduced price, holding himself accountable to B. for the produce. B. brought an action upon the note; upon which A. paid into court the money arising from the resale of the goods. Held, that the payment of money into 1806. BASTON versus BUTTER. 1806. BASTON versus BUTTER Here if no agreement is made for a specific sam there can be no surprise; because you must shew court is an admission of the bill; and that the above defence cannot be set up after that admission, as it goes to deny the consideration for the bill. THIS was an action against the defendant, upon a bill of exchange, as acceptor; with the common money counts. The original consideration for the bill was for money due for hams and tongues, sent by the plaintiff to the East Indies, by the order of the defendant. When they arrived there, they were found unfit for the market, for which they were intended, and not according to the order. The defendant, therefore, sold them in the East Indies at a reduced price; considering that it would be too expensive to return them to England, and that to dispose of them as soon as possible would be most for the interest of the plaintiff. The produce of the sale he paid into court in this action, but without applying it speci ally to any particular count. On the trial, GIBBS, for the defendant, insisted, that the goods being sent according to order, the defendant was neither bound to take them, nor to pay for them; that he sold them only for the benefit of the plaintiff, and was only answerable to him for the produce of the sale, as for so much money had and received to his use, which did not exceed the money paid into court. But Lord ELLEN BOROUGH, C. J. before whom the cause was tried, held, that the payment of money into court was an admission of the whole declaration, and consequently of the bill of exchange; and the plaintiff had a verdict for the amount thereof. GIBBS now moved for a new trial, and contended, that the Roney having been paid into court generally, it might be afterwards applied, at the trial, to any count, upon which it might be proved due: that here nothing was due upon the pron:issory note, the consideration for that having failed ; but སྙ that it was done well, and shew how much it was worth. In the other cases, it may be well not to admit the defence, if the party is taken by surprise, and you give no notice of the defence upon the non-performance of the meritorious consideration. But, when it comes on upon the quantum-meruit, you come to prove the work well done; whereas in the other case, you come to prove only, that the work was done for a specific sum; to prove that the thing was done in the ordinary manner; and, if the thing was not done well, the other party should show, that he gave some that the plaintiff could only be entitled to demand of the defendant the money produced by the resale of the goods as money had and received to his use. Lord ELLEN BOROUGH, C. J. "This was only the common case of goods sold, which turned out not to be answerable to the terms agreed upon; and the defendant might have resisted the payment of the note altogether. But the payment of money into court generally, is an admission of the cause of action stated in the declaration, and of the bill." GIBBS urged, that payment of money into court was not an adinission that the whole of the money on the bill was due. BUT THE COURT still refused the rule. It should seem, therefore, that the bill, as stated in the count, must be taken to be admitted, and that although the sum may be reduced by shewing payment, or any thing. which admits the bill, and yet lessens the demand, the defendant cannot set up any defence, which goes to shew the want of a good consideration for the bill; because that denies all claim upon the bill, and is inconsistent with the admission of its validity. RULE NISI REFUSED. 1806. BASTON versus BUTTER. 1806. BASTON versus BUTTER. intimation as to the defence. That is rather the pre valent practice even on quantum meruits, but I cannot think that it is to be sustained so far." GROSE, J. "He must be prepared to shew, that it is worth the money." LAWRENCE, J. "The rule laid down is, I think, a good rule, provided the party is in danger of being surprised; but, if he has notice of the performance of the contract being intended to be contested, he ought to be prepared. He is only bound by the form of the contract. He is to be paid for something done; and if not done he has no right to the money but, if you let him go on, supposing that the only question to be tried is, whether the contract was made or not, you shall not take him by surprise. The court will then say, you shall not take this defence; go to your cross action. But on a quantum-meruit, he comes, at all times, to prove the worth of the thing, the quantum-meruit." LE BLANC, J. "It is not sufficient to shew, that he bricks and mortar were put together. It cannot be a contract merely to put it up, without regard to whether it was well or ill, even upon a stipulated price; because, if so he could not bring an action for not building well; for that can only be on a contract to build well. Then, the only question is, whether the party is to be taken by surprise? for, if the party put it upon the record and said, true it is, I did promise to pay the man a particular sum, but he did not do the thing required, that must be a good defence. Here, there is no surprise." RULE ABSOLUTE. |