Baker v. Herty

2 F. Cas. 464, 1 Cranch 249

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: July 15, 1805
• Status: Published

Opinion

THE COURT

overruled the objection and admitted the testimony.

Mr. Key offered evidence of a third story extra, and of other alterations made in the plan in the two lower stories.

Mr. Hewitt, having offered the agreement in evidence, objected to all the evidence given by the plaintiff, of extra work, alleging that it was provided for by the aforesaid clause in the agreement, and prayed the court to instruct the jury that they ought not to regard such evidence, it not being legal.

THE COURT refused. KILTY, Chief Judge, doubting as to the evidence respecting alterations in the two first stories, the original agreement being for a two-story house.

CRANCH, Circuit Judge.

The whole extra work, whether it consist in alterations or additions to the original plan, or bill of particulars, is within the covenant; but as no persons have been chosen to ascertain the value of the extra work under that covenant, the plaintiff is not deprived of his original cause of action on a quantum meruit, and can only resort to the covenant for damages against the defendant for not appointing a person .on his part to ascertain the value of the extra work. The defendant, in not paying for such work, has not committed any breach of that covenant.