Rodman v. Woolman Sullivan

7 Del. 581

• Court: Superior Court of Delaware
• Decided: July 5, 1863
• Status: Published

Opinion

The Court,

Gilpin, C. J.,

charged the jury: That the action was not, and could not be, on the special contract or agreement of the parties, if any had been proved, because it had not been entirely performed on either side ; but it was an action of indebitatus assumpsit simply with the - common counts for work and labor, without any reference, as it stood upon the record, to any special contract whatever. ÍTone of the terms, therefore, of such a contract could be taken into consideration in determining the present case, which was now before them precisely the same as if the services referred to had been performed without any special, or express agreement between the parties in regard to the matter. And viewed in that light, as a promise implied by law merely on the part of the defendants to pay the plaintiff for the three years and eight month’s service rendered them by the son of the latter, whilst he was yet a minor, whatever such services may have been proved to have been reasonably worth to the defendants, they could only consider that reasonable compensation now demanded for them, as one continuous claim and as an account open and current between them for the time being ; and therefore any credit entered, or any payment made by the defendants on such account, or for such services, within three years next preceding the commencement of the action, would have the effect to take the ease out of the operation of the statute of limitations, which had been pleaded by the defendants, and to remove the bar of it, as against the whole, or any part of the demand for such services, as was now presented by the plaintiff; because such a credit entered, or such a payment made in the meanwhile by the defendants on such account, would import and imply in law an acknowledgment on their part, that the plaintiff then had a valid and subsisting claim against them for such services. But discarding, as they should in the present case, all the special terms of the express contract referred to, they could not now distinguish, or discriminate in their consideration of the case, between the first and subsequent years of the son’s service, as a separate and distinct service rendered or performed by him on terms in any manner differing from those on which the subsequent services in the last two years and eight months were rendered by him. Because the present action was not upon any such special contract as would warrant the division of the plaintiff’s claim or demand in any such manner. On the contrary, it was one continuous and indivisible demand for three years and eight month’s service of his son, upon a quantum meruit count merely, and altogether outside and independent of any special agreement whatever between the parties in regard to the matter. And considered in that light, as the whole demand of the plaintiff had not accrued until within less than three years before the commencement of the action, even without any such credit, payment, or acknowledgment by the defendants, the statute of limitations could constitute no defence to it.

But notwithstanding the special agreement referred to was entirely out of view and out of question, as the basis on which the present action was proceeding, it would nevertheless be allowable for the jury in estimating the value of such services, with a view to ascertain the compensation, or damages to which the plaintiff might be entitled, to consider what would have been their value to the defendants, if the special contract, or agreement had been entirely performed and executed, according to the estimate and valuation placed upon them by the parties themselves at the time the same was entered into between them so far as it might be practicable under the circumstances for the jury to do so from the evidence before them in regard to it, and the loss which they had thereby sustained by reason of the abandonment of their service by the plaintiff’s son.

The defendants had a verdict.

Lore, for the plaintiff.

Gordon, for the defendants.