Supreme Court of Arkansas

Error to Pike Circuit Court

Reported 1840

                               Jesse Simpson                                 
                              Robert McDonald                                
Where a party stipulates to build a mill, which shall cut or grind certain   
quantity, for an agreed compensation, and fails in the performance of the    
contract, he cannot afterwards recover a quantum meruit count for the value  
of the work and labor done, and materials furnished.                         
But if after failure, he is permitted by the other party to go on and        
rebuild the mill, which work is afterwards accepted, without any objection   
to its sufficiency, a recovery by suit may be had of the value of such work  
on the implied contract.                                                     
To allow one to perform a piece of work, without a special agreement, and    
afterwards to accept it, raises in law an implied contract by the party for  
whom the work is done to pay what such work is worth.                        
                        Error To Pike Circuit Court.                         
This was an action of assumpsit, and the declaration contained three counts: 
two of them charging the defendant (Robert McDonald) in indebitatus          
assumpsit in different ways, and the other count seeking to render him       
liable on a quantum meruit. The case was tried upon the general issue, and   
there was a verdict and judgement for the defendant (Robert McDonield).      
After judgement, the plaintiff (Jesse Simpson) filed his motion for a new    
trial, also his motion in arrest of judgement. Both motions were overruled;  
and he (Jesse Simpson) thereupon excepted to the opinions of the court, and  
spread the evidence adduced on the trial upon the record.                    
The bill of exceptions discloses substantially the following facts: The      
plaintiff (Jesse Simpson) agreed to build for the defendant (Robert          
McDonald) a saw mill that would cut fourteen hundred feet of plank per day,  
and also a grist mill that would grind from seventy-five to eighty bushels   
of corn meal per day; and if the mills failed to perform the above           
stipulated quantity of work, he was, in that event, to receive no            
compensation whatever for building them. No time was fixed on when the       
mills were to be completed, nor was any price agreed on between the parties  
for their construction. Under this agreement the plaintiff (Jesse Simpson)   
proceeded to execute the work himself, as a millwright, and to superintend   
and direct the hands of the defendant (Robert McDonald), who seem to have    
been employed in helping him to build the mills. When the works were         
finished, the proof clearly shows that the mills were wholly valueless for   
the purpose for which they were built, and so several of the witnesses       
testify; and so the plaintiff (Jesse Simpson) expressly admitted himself.    
This being the case the plaintiff (Jesse Simpson) employed other millwrights 
to rebuild the mills, at his own expense, and upon their completion they     
were delivered to and accepted by the defendant, and answered the purposes   
for which they were built.                                                   
              Trimble, for plaintiff (Jesse Simpson) in error.               
                         Trapnell & Cocke, contra.                           
J. Lacy. Upon the first contract which was partly expressed and partly       
implied, it is perfectly evident that the defendant (Robert McDonald) was    
not bound, because the law raised no assumption on his part, by reason of    
the plaintiff's (Jesse Simpson's) entire failure to perform his part of the  
agreement. Had the proof ended here, it is manifest that the defendant       
(Robert McDonald) would have been exonerated from all liability whatever.    
But the testimony further shows, that the first contract being canceled,     
the parties subsequently entered into a second implied agreement, by which   
each became liable according to its terms or legal effect. The plaintiff     
(Jesse Simpson) again undertook to rebuild the saw and grist mills, and      
upon their completion and delivery the defendant (Robert McDonield), by an   
implied promise, assumed to pay a fair valuation for the work and labor      
done. The acts done and performed by both parties unquestionably demonstrate 
this to be the case.                                                         
It appears from the record that the plaintiff (Jesse Simpson), at his own    
individual cost and expense, employed other millwrights to rebuild the saw   
and grist mills, and upon their completion they were delivered to and        
accepted by the defendant (Robert McDonald). By permitting their             
rebuilding, the defendant (Robert McDonald) agreed that the work might be    
done for him, and by receiving them after they were finished, he tacitly     
waived whatever objection he might have made to the sufficiency of the       
work. He (Robert McDonald) thus ratified and confirmed the second implied    
contract, by allowing the (plaintiff) to do the work for him (for it is a    
maxim well settled, that he who does a thing by another does it by himself), 
and by receiving the mills after their completion, the law raises an         
implied promise on his part to pay a fair and reasonable compensation for    
the labor and services rendered.                                             
The saw mill as rebuilt, is proved to be able to cut one thousand to twelve  
hundred feet of plank per day, and the grist mill is capable of grinding     
seventy-five to eighty bushels of corn meal during the same period of time.  
The mills that are built are shown to be very nearly equal in value to those 
the plaintiff (Jesse Simpson) undertook to erect in the first instance. But, 
he that as it may, still they are proved to do good work, and the defendant  
(Robert McDonald) by accepting them, admitted they were rebuilt in a         
workmanlike manner, or in such manner as was entirely satisfactory to        
himself. This being the case, he thereby waived his right to object to the   
sufficiency of the work; and having accepted them, and being now in the      
enjoyment of profits, it is surely but just and reasonable that he should be 
compelled to pay for their rebuilding. The defendant's (Robert McDonald's)   
liability does not, as it is supposed, grow out of his first agreement,      
which was canceled and annulled; but it accrues on his second implied        
contract, which he wholly failed to perform. If he (Robert McDonald) is      
bound by this contract, and that he is, seems to us to be almost             
self-evident, then it must necessarily follow that both the verdict and      
judgement of the court below (Pike County Circuit) were manifestly           
erroneous, being expressly and violently contrary to the justice and right   
of the case. If this position be true, the court (Pike County Circuit) also  
erred in not granting the plaintiff (Jesse Simpson) a new trial on his       
motion. The judgement must therefore be reversed, and a new trial awarded.   
Reports of Cases Argued and Determined in the Supreme Court of the State of  
Arkansas in Law and Equity, Book 1 pp. 388-389, Reprint 1888. Original       
Volume 2, Printed 1840.                                                      
David Kelley 1997