Bianchi v. Maggini

17 Nev. 322

• Court: Nevada Supreme Court
• Decided: January 15, 1883
• Docket: No. 1119
• Status: Published

Opinion

By the Court.,

Hawley, C. J.:

This action was brought to recover the sum of eight thousand eight hundred and fifty dollars, alleged to he due plaintiffs upon a contract for the manufacturing of charcoal out of wood upon the ranch of defendants. Plaintiffs are the assignees of the contract, and claimed that they burned fifty-nine thousand bushels of charcoal. They recovered judgment for five thousand eight hundred and thirty-six dollars and ninety cents (the deduction of the amount sued for being for an admitted offset.) During the pendency of a motion for new trial the sum of nine hundred dollars was remitted from the judgment.

On the seventeenth' of August, 1880, forty-five thousand bushels of coal, manufactured by respondents, was destroyed by fire without the fault of either party, and the principal question to be determined upon this appeal is, which of the parties (or both) shall bear the loss.

The contract was written in Italian. Translated it reads as follows: “The present and following contract, made and-concluded to-day,.first day of March, 1878, between Lorenzo Armetta, of the county of Eureka, state of Nevada, party of the first part, and the Maggini brothers, of the same place, for the second party, certify and agree to what follows, that is: That the aforesaid Lorenzo Armetta takes the responsibility to cut and carry the wood, burn the same into good, salable coal, and to place it where he himself can load it on the wagons; that the aforesaid Maggini brothers will send for its transportion to Eureka. Furthermore, he agrees to make the roads necessary to easen the transportation of the coal in that portion of the ranch assigned, * * * and to eut and clean off all of said portion of said ranch, wherever pine wood is to be found, and to be reduced into merchantable charcoal. * * * Further, said Lorenzo Armetta agrees to not compel the said Maggini brothers to ship or sell said coal- at the furnaces in Eureka if they do not find it to their interest. The aforesaid Lorenzo Armetta agrees to perform said labor in accordance with the mentioned conditions and specifications, and to receive the sum of fifteen (15) cents for each bushel of coal by him made, and to accept the measure that the aforesaid Maggini brothers shall receive from those that purchase the coal. The said brothers agree to pay the sum of fifteen (15) cents per bushel of coal on every pay-day of the furnace where the same is sold, in San Francisco check, payable in such manner as they shall receive it. They also agree to furnish the said L. Armetta the work and provisions for not more than four men. In case they should not desire to sell the coal, by reason of low prices or high freight, the provisions shall be paid for with the first coal sold.

! ‘ In faith we both sign.” '* * *

The coal, under this contract, was manufactured prior to the twelfth day of December, 1879, at which time the respondents came into Eureka and informed appellants that “they had finished burning the coal.” They made no demand for any money due on the contract until the commencement of this suit. The price of charcoal at Eureka, after this coal was manufactured and up to the time of its destruction by fire, was never more than twenty-eight cents per bushel (with a deduction of two cents royalty), and was at times as low as twenty-two cents. The freight from the ranch to the furnaces at Eureka was thirteen cents per bushel, and sometimes as high as seventeen cents. It was worth two cents per bushel to sack and load the coal.

What is the rule of law applicable to the facts of this case ?

The rule is well settled that if parties enter into a contract for the erection of a building, and the property is destroyed by fire'before the building is completed, the contractors cannot recover, because they have not done the work which they agreed to do. (See authorities cited by appellants.) But this rule would be changed if the owner of the building took .possession before the property was destroyed, although the work might not have been fully performed by the contractor (Lord v. Wheeler, 1 Gray 282), and if a person agrees to repair another’s house already built, such destruction of the building puts an end to the contract, and the contractor can recover for the value of the work and labor performed. (Cleary v. Schier, 120 Mass. 211.)

Storey, in his treatise upon bailments, in discussing the general principles of the common law, among other things, said:

“ That if the thing of the employer, on which the work is done, and for which materials are furnished, is, by accident and without any fault of the workman, destroyed or lost before the work is completed, or the thing is delivered back, the loss must be borne by the employer, and he must pay the workman a full compensation for the work and labor already done, and materials found, although he has derived no benefit therefrom. * * * However, the' general rule may be controlled by a special agreement of the parties or by the general usage and custom of the trade.” (Section 426 a.)

“Section 426 b: The foregoing doctrine proceeds upon grounds applicable to the general contract of hire. But suppose there is a contract to do work on a thing by the job (as, for example, repairs on a ship), for a stipulated price for the whole work, and the thing should accidentally perish or be •destroyed, without any default on either side, before the job is completed, the question would then arise whether the workman would be entitled to compensation pro tanto for his work and labor done and materials applied up to the time of the loss or destruction. It would seem that by the common law in such a case (independent of any usage or trade) the workman would not be entitled to any compensation, and that the rule would apply that the thing should perish to the employer and the work to the mechanic, for the contract by the job would be treated as an entirety, and should be completed before the stipulated compensation would be due. If, indeed, the job was completed before the accident or loss, although the thing was not delivered, it would or might be otherwise, for then the mechanic would or might be entitled to his full compensation.” Both parties rely upon this text. Appellants claim that this case comes within the rule “that the thing should perish to the employer and the work to the mechanic.” Respondents contend that it is a case where the workmen are entitled to “ full compensation.”

We have examined several authorities in addition to those cited by counsel, but the text in Story upon bailments is as fair a statement of the general rule as is to be found in the decided cases. The controlling question, as to the right of the workmen to recover, seems to be whether anything has been left undone by them which, by the terms of the contract, is a condition precedent to their right of recovery.

The position taken by appellants, that respondents cannot recover because there was nothing due upon the contract “ until the coal was sacked and loaded on the wagons, sold, and shipped to the furnaces at Eureka, measured, and the money or coal receipts given therefor,” is not sustained by the authorities.

It is true that respondents had not sacked and loaded the coal, as by the terms of the contract they agreed to do; but this was not their fault. If they had, as they claim, finished the burning of the coal, they had done everything they agreed to do, except to sack and load the coal, and this they could not do until appellants were ready to haul the coal away. They only seek to recover the contract price for manufacturing the coal; the nine hundred dollars which they remitted from the judgment being the value of the work for sacking and loading the coal.

There was, it seems to us, nothing more which they could-have done in order to complete their part of- the contract, and there was nothing else to be performed by them which could reasonably be construed as a condition precedent to their right of recovery. The fact that payments were not to be made until the coal was shipped to Eureka, measured and the money or coal receipts given therefor, does not prevent respondents from maintaining this action.

In Rawson v. Clark, a written contract was entered into wherein Clark agreed to manufacture and place in Rawson’s building certain iron work for a certain price; eighty-five per cent, thereof was to be paid on the certificate of the- architect as the. work progressed, and fifteen per cent, when the work was completed. After all the iron was manufactured, but before any of it was set up, and but one load delivered, the building was wholly destroyed by fire, and was not rebuilt.

In an action to recover the contract price for manufacturing the iron, Rawson, among other things, insisted that the obtaining of the architect’s certificate was a condition precedent to the right to bring the action; but the court held- that the reason of Clark’s not completing the contract by placing the iron in the building was the default of the defendant in not having a building provided for that purpose, and that the “case contemplated for the giving of the architect’s certificate never arose,” and that the plaintiff was entitled to recover the price of the iron work. (70 Ill. 657.)

In the present case no time was specified within which the coal was to be hauled gaway and sold. The payment to the respondents, however, was not to be made until the coal was sold by appellants, and then in the manner.specified in the contract; but the occasion therein provided for never arose, and never could arise, because the coal was destroyed by fire before it was sold. The real question, therefore, is at whose risk the coal was left after it was manufactured. •

“When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner ¿t the time.” (Wells v. Calnan, 107 Mass. 515.)

Who owned the coal ? Not the respondents. They could not sell it or dispose of it. It did not belong to them. When manufactured it became the property of appellants. They were the owners. It was on their ranch, and they had the rigid to sell or dispose of it upon such terms and conditions, and at such times, as they saw fit.

After respondents completed their contract and performed the work they had agreed to do, the coal, in our opinion, remained upon the ranch at the risk of appellants, and if it was stolen, or destroyed by fire, without the fault of respondents, then the appellants, in the absence of any conditions expressed in the contract upon, this point, must bear the loss. Respondents were required to use ordinary diligence- in protecting the pits while engaged in manufacturing the coal; but there are no provisions in the contract, or any custom or usage as testified to, that required them to keep possession of the coal, or to pay the expense of a watchman or keeper,, to protect the same after it was manufactured, and they were not, therefore, guilty of any negligence in this respect which would prevent a recovery upon their part.

The other questions will be briefly disposed of.

The court’s construction of the contract was substantially correct.

The instruction given by the court, that “defendants were required to pay the plaintiffs the contract price ” for burning the coal ‘ ‘ within a reasonable time after the completion of the work by the plaintiffs,.” introduced a false quantity for the consideration of the jury, the true question being, as we have before stated, at whose risk the coal was left, and who should bear the loss in case of its destruction. The question as to-whether a reasonable time had elapsed for the sale 'of the coal, and payment to plaintiffs was erroneously introduced into-the case; but. this was not prejudicial to appellants, and it is apparent that they are not entitled to have the case reversed iipon this ground.

Upon the trial the defendant, Joseph Maggini, testified that ‘ ‘ the plaintiffs did not cut all the pine wood on the ranch, and burn it into coal, as was agreed in the contract. They left wood uncut to the amount of five thousand'two hundred and twenty (5,220) bushels of charcoal. -We afterwards had the •same cut by other parties, and burned.”

Plaintiff, Bianchi, in rebuttal -upon, this point, testified “that the five thousand (5,000) bushels of coal, which Maggini had testified had been burned from the wood left on the ranch, was burned by parties who had commenced to manufacture the coal for Maggini brothers before the plaintiffs had finished burning the coal under the contract, and was not upon that part of the ranch mentioned in the contract.”

This was the only testimony introduced upon this point, and the jury might very properly have found as a fact, as they were required to do by certain instructions if they found in plaintiffs’ favor, that the plaintiffs had fully complied with the terms of the contract in this respect. But appellants contend that if respondents had not cut all the wood they could not recover for the coal actually manfactured in an action upon the contract, although they might recover upon a quantum meruit, and several instructions, bearing upon this question, were asked, some being given and others refused.

Upon a review of all the testimony we are of opinion tliat the notification given by respondents, that they had finished the contract, amounted to a delivery of the coal, and that defendants having accepted the same, with full knowledge of all the facts, were liable for the contract price of the coal manufactured. (Ruffee v. U. S., 15 Ct. of Claims, 291.)

If the respondents had not cut all the wood this fact could have been pleaded, and damages, if any resulted from the failure, recovered as an offset; but it could not, under the circumstances of this case, be urged as an absolute defense to the action. . The fourth instruction given by thé court, at the request of plaintiffs, to-wit: “Even if you should believe, from the evidence in this ease, that there was wood left upon the ranch where this coal was burned, which the plaintiffs could have reduced into coal, this constitutes no defense in this action, brought to recover the contract price for the coal actually burned, unless the defendants have established, to your satisfaction, that the alleged failure of the plaintiffs damaged them, and then only, to the extent of the damage,” was correct, and the court did not err in refusing to give the instructions asked upon this point by defendants.

The ruling of the court in striking out the testimony of the witness Maggini, as to the custom and usage of the trade in not paying for coal until after it is sold, even if erroneous, was cured by the subsequent admission of the undisputed testimony of the witness Tognini to the same effect. (Menzies v. Kennedy, 9 Nev. 159.)

The judgment, with the remission of nine hundred dollars, is sustained by the pleadings and evidence, and is in accord with the justice and law of the case, and is hereby affirmed.