Knowlton v. Tilton

38 N.H. 257

Opinion

Sawyer, J.

The contract under which that part of the labor was performed to which the case relates, is under seal. In general, debt or covenant is the proper form of action for enforcing the payment of money agreed to be paid by such contract. Assumpsit cannot be maintained for its recovery unless there is a subsequent agreement, founded upon some new consideration, to pay the debt or perform the contract, or its terms are varied by a subsequent simple contract, or other proceedings, constituting an abandonment or waiver of its provisions, such that the law may imply a promise independent of that expressed in the sealed instrument. 1 Ch. PL 94-96; Hill v. Green, 4 Pick. 114; Lattimore v. Harsen, 14 Johns. 330; Dearborn v. Cross, 7 Cow. 48; Lawrence v. Dole, 11 Vt. 549. The trial proceeded upon the ground that there was no evidence before the jury of such waiver, abandonment, or alteration of the original contract, and it was held by the court that none such was necessary. The report of an auditor is, by the statute, made evidence to the jury in support of the claim found due in the report. "When the plaintiff had introduced that to the jury, it was unnecessary for him to proceed farther in support of his case, although it might be made to appear that the claim found due by the auditor was for labor and services rendered under a special contract, under seal. The statute making the report evidence implies that, in the absence of all conflicting evidence, it is sufficient to establish every fact material to the proof of the claim, and among them, if that is material, that of a rescinding, waiver or abandonment of the contract. If the ruling of the court could be understood to have been nothing more than that, when the report was given in evidence, the plaintiff’s case was maintained without specific proof of the waiver beyond what is furnished by the report itself, the ruling might well be sustained. So understood, the ruling would have left the defendant at liberty to invalidate the report as evidence in this particular, by the testimony of the auditor, or other competent proof, showing that he did not arrive at his result by finding that there had been a waiver, but by holding that it was immaterial whether there had been or not, or to control it by an overbalance of testimony, if he in fact acted upon the view that there had been such,waiver. The ruling cannot be understood as thus limited. The exception taken by the defendant may fairly be considered to raise the question whether evidence as to the waiver of the contract was material. By the ruling, he was precluded from making an issue to the jury as to the waiver upon which depended the question whether the action, in its present form, could or could not be maintained.

As to the second exception, by the terms of the agreement the defendant was to pay whatever might be due for painting on the first day of May. The action was commenced on that day. The ruling of the court upon the question whether a demand was necessary, qualified as it was at the first view, would seem to have left the enquiry open to the defendant whether, in fact, a demand was made, but at the same time the court ruled that the question was immaterial, by holding that the action was well brought without a demand. The ruling that it was immaterial whether a demand was or not made, was correct; not, however, because the action brought on the first day of May may be maintained as well without it as with it, as to the work agreed to be paid for on that day, but because it cannot be maintained as to that work, even with a demand.

In the,case of negotiable securities, the rule is well established that suits upon them may be commenced on the last day of grace, if preceded by a demand made on that day. Leftly v. Mills, 4 T. R. 170; Shed v. Brett, 1 Pick. 401; Bank v. Cutter, 3 Pick. 414; Staples v. Bank, 1 Met. 43; Greeley v. Thurston, 4 Me. (Greenl.) 479.

But the case of such commercial securities is held to be an exception to the general rule which governs in all other classes of contracts — which rule is, that the promissor, in a contract for the payment of money on a designated day, has the whole of that day in which to pay it; and no cause of action arises until it has fully expired, even upon demand made on that day. Webb v. Fairmaner, 3 Mees. & Wels. 474; Harris v. Blen, 16 Me. 175, and cases above cited. The contract being to pay on that day, the suit is premature, if, when brought, any portion of the day remains in which the payment may be made according to the terms óf the contract. The ruling of the court upon this point, that the action was well brought, without demand, must be understood to assume that the contract was subsisting, and the suit brought to enforce payment according to its terms for work done in pursuance of it. There was no breach of the contract in this particular until the first day of May had elapsed.

As to the third exception, the court also erred in the construction given to the contract, as to the time when the rent, payable in painting, became due. There being no time limited in the contract for doing the work in payment of the rent, the law implies that it is to be done on request, within such time as may be held reasonable, upon a view of the nature and subject matter of the contract, and all the circumstances of the case. Chit, on Con. 730, (n. 1), and cases there cited. The shop was leased to the plaintiff for a year, to be used by him as a painter’s shop. The reasonable inference is that the parties contemplated that the work should be done at the shop, and during the term for which it was leased. The defendant cannot be supposed to have contracted that he would refrain from calling upon the plaintiff during the year to paint his carriages, on account of the rent, and at its expiration to transport them to his shop elsewhere, wherever that might happen to be, for that purpose; nor that he would pay cash for the large amount of painting for which he might have occasion to call upon the plaintiff, down to the first of November, without deduction on account of the rent, and take his chance of having carriages ready for the painter’s work, to the full amount of the rent, within the thirteen days between that and the end of the term. The fair understanding of the agreement is, that the plaintiff was to paint the defendant’s carriages and sleighs as they were brought to the shop during the year, at the various prices specified, and to receive his pay for what might be due on this account, in cash, on the first days of the several months mentioned — the amount thus due being found by deducting, from the whole amount of work which had been done on each of these days, so much of the rent as had then accrued, at the rate of forty dollars for the year. The instruction to the jury, that the rent was not due until the end of the year, also assumes that the contract was subsisting. There is evidence in the case tending to show that, by mutual consent, the contract was abandoned at some time between the 21st of April and the 17th of May. This was not, however, made a question to the jury. The fact that the defendant was in possession of the shop on the 17th of May, if unexplained, might warrant the jury in finding that so far as the contract remained executory at that time, it was abandoned by'mutual consent. If such were the facts, substantial justice may have been done to the defendant by allowing him only the twenty dollars on account of the rent. But the defendant claimed the whole rent for the year, as the amount of the deduction proper to be made, and he had the right to that deduction, unless such abandonment of the contract was found by .the jury. The verdict must be set aside, and a

New trial granted.