Plaintiff below (Covert) contracted in writing to erect a large brick building in the city of Meridian for defendants, Baum Co., for the sum of seventeen thousand five hundred dollars. The building was to be erected under the general supervision of an architect, and every specification was set forth with the minutest particularity. There was a special stipulation that no extras, or outside work of any kind, were to be allowed or paid for, unless the same was agreed upon beforehand in writing and the stipulations therefor signed by the architect, after being first signed by the owner. Notwithstanding this agreement was signed by the contractor, by the owners of the building, and by the architect, the contractor, having finished the house, has propounded a claim, and obtained judgment with a mechanic's lien therefor, for the sum of several hundred dollars for extra or outside work, though admitting that no writing whatever was ever entered into by any person on the subject. He did this by proving before the jury that each item of extra or outside work was specially ordered by the owners, who gave him verbal commands therefor; that said owners witnessed the doing of the work, and have taken possession of and are now using it, and that it was reasonably worth the sums charged. The owners of the building denied all this, insisting that the orders, if given, were not only verbal, and therefore void, but that the work was done, if at all, without their authority, and in some instances without their knowledge or consent. The jury, however, believed the contractor and disbelieved the owners. So believing, their verdict was correct. Notwithstanding a previous agreement that there should be no extras or outside work, save upon an express agreement in writing previously made, it was entirely competent for the parties in interest to contract verbally for whatever they mutually thereafter desired. Both parties being sui juris, they could nullify their previous agreement *Page 119 at pleasure. This they did whenever the one party ordered, and the other agreed to do whatever extra work they should mutually agree upon. They were the parties solely interested, and had the same right to undo verbally that which they had previously put in writing as they originally had to make such writing. "Consensus facit jus;" and if it be true, as the jury has found, that the one party ordered the additions which the other made, the owners of the building must pay for them, notwithstanding the written stipulations to the contrary. Such stipulations, though written, may be altered or rescinded by parol, and it may be inferred sometimes that this has been done, from the acts of the parties. Rhodes v. Thomas, 2 Carter, Ind. 638; Smith v.Sugerty, 4 Barb. 614. Had the jury, therefore, been properly instructed, their verdict in the main must have been affirmed, but the case was manifestly tried upon the wrong basis. It seems to have turned much more upon the construction of the original building contract than upon aquantum meruit as to the extra work sued for.
The building contract was introduced in evidence and great stress laid by each party upon its terms — not for the purpose of showing that the extra work sued for was without or within those terms, but for the purpose of demonstrating that it had or had not been constructed in the mode therein described, that there had or had not been a precedent writing agreed upon, or that, by the terms of the contract, such precedent writing could be supplied by a verbal contract with the architect, or even by a subsequent indorsement and ratification by him. The jury were told, too, that the reception of the house with the extra additions annexed thereto imposed a legal liability upon its owners to pay the reasonable value thereof. The court was evidently forgetful of the fact that the owners had already paid for the house and had a right to use it, which the contractor had no right to deprive them of by affixing unauthorized additions thereto which they had incurred no liability to pay for by a mere reception of the structure itself. The jury were also told that defendants were bound as to the credibility of the architect by their production of his certificate as to the extra work, because, as was said, the written certificate of the work by the architect was equivalent *Page 120 to a previous agreement. This was doubly erroneous, because the building contract does not make the architect's certificate the equivalent of a previous agreement, and because, this suit being for the recovery of the price for extra or outside work, the building contract had nothing to do with it. That contract could be appealed to by either party, but only by way of evidence for the purpose of showing that the things sued for were or were not embraced in the contract price. For all other purposes the written contract was inadmissible because wholly immaterial. The jury were informed that the owners of the building were liable for all work done by the special orders of the architect, under whose general supervision the building was erected, and who, by the terms of the written contract, had authority to control the work. By several of the instructions the jury were left to construe the contract for themselves.
It is enough to say of all such instructions on either side that they could only have tended to mislead and confuse the jury.
This suit was not for the recovery of the price of any work whatever authorized by the contract. It was expressly brought for those things which lay outside of and beyond it. The written contract, therefore, in no manner controls the rights of the parties except as showing what things were covered by the contract price. The writing was admissible for this purpose and for no other. Notwithstanding their stipulations to the contrary, the owners must pay a reasonable value for everything furnished by their order if it be clearly established to the satisfaction of the jury that such things were ordered by them. The burden of so proving is, of course, upon the plaintiff and must be clearly established by him. This burden is greatly increased by the written stipulation in advance; but if it be satisfactorily proved that the extra work was done in consequence of their orders, we know of no principle which forbids a recovery.
The court correctly ruled that the gas fixtures in the building attached to the freehold for the purpose of being used there were covered by the mechanic's lien.
It incorrectly ruled that the tables in the building used as counters were so covered. It is not shown that these tables were in any *Page 121 manner attached to the house or were anything more than mere ordinary tables, which could have been used in one place as well as another. That they were intended or afterward actually used as counters is not enough. For aught that appears, they could as well have been used anywhere else or for any other purpose.
Reversed and remanded.
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