This bill was filed in the superior court of chancery against the state of Mississippi, by the appellee.
Its object was the recovery of damages alleged to have been sustained by complainant, in consequence of the non-performance of a contract on the part of the state, which had been entered into by her legally constituted agent, with said complainant. *Page 490
A very brief statement of the allegations of the bill and the facts of the case, will be sufficient to a proper understanding of the questions upon which we may have to pass.
In November, 1833, as it is alleged in the bill, the appellee entered into a contract with John Lawrence, who was then architect for the public buildings of the state of Mississippi, by which he became bound to furnish all of the lumber or wood material, and to do all of the carpenter's work, which would be required to be done in the construction of the state capitol, which it was then in contemplation to erect. For furnishing the lumber and the performance of the carpenter's work, the appellee was to receive as full compensation the sum of $33,000.
Some time after this contract had been entered into, the architect, Lawrence, entered into a contract with Phillips Rothrock, by which they were to furnish the lumber which would be required in the building of the capitol. This agreement was made with the express assent of the appellee, and was designed as a modification of his contract, by which he would be relieved from his obligation to supply the lumber. The architect took from Phillips Rothrock a bond conditioned for the due performance of their agreement.
The appellee, in order to be prepared for a prompt and faithful performance of his agreement with the state, engaged the services of a number of mechanics, whom he brought to Jackson. He was bound for their board and wages, and was always ready to comply with the stipulations of his contract. But avers he was unable to do so in consequence of the want of material, of the failure of other contractors, and of the delays, hindrances, and obstructions caused by these means, and by the acts and negligence of the officers of the state. And finally that the contract, without his consent, was annulled by the state.
In consequence of all of which he had suffered great wrong, and sustained heavy pecuniary damage. An issue quantum damnificatus and general relief are prayed for in the bill. After various proceedings had in the cause, which it is not material to notice, the state by the attorney-general filed her answer in *Page 491 1840. The answer denies performance on the part of the appellee, and requires this proof as to all matters alleged in the bill. Upon the filing of this answer, the chancellor ordered the following issues of fact to be submitted and referred to a jury, namely:
1. Whether the contract was made as stated in the bill between the complainant and John Lawrence, as the architect on behalf of the state of Mississippi ?
2. If said contract was made, as stated in said bill of complaint, was the said complainant hindered or prevented from performing the said contract on his part, by the act or acts of the said John Lawrence, acting on behalf of the state of Mississippi ?
3. If said contract was made as above stated, and said complainant was hindered or prevented from performing said contract on his part to be performed, by the act or acts of the said John Lawrence, acting as architect as aforesaid, or by a failure on the part of the state to make payment to the complainant agreeably to said contract, then the jury shall assess the amount of damages (if any) which the complainant hath sustained by reason thereof, and the amount (if any) that may be due and owing to the complainant?
These issues were sent out to be tried in the counties of Rankin and Hinds, and after many ineffectual efforts to obtain a decision upon them by a jury, they were remanded into this court by the chancellor. At length, after many delays and various interlocutory orders, which, however, produced no material change in the state of the controversy, they were submitted to a jury empanelled before said court, who rendered a verdict in the following form, namely, "We the jury find for complainant, and assess his damages at eleven thousand two hundred and one dollars and sixty cents."
A motion was made to set aside the verdict, and for a new trial, which having been overruled and the verdict approved, a final decree was rendered for the appellee.
This cause comes before us by appeal, and we are urged to reverse the said decree for errors alleged to have been committed by the chancellor, in overruling the motion to set aside *Page 492 the verdict, in refusing to instruct the jury on the trial of the issues, as requested by the appellant's counsel, and in permitting improper evidence to be submitted to the jury.
1. The verdict in this case, according to the statute of the 5th March, 1846, (Hutch. Dig. 786, art. 28,) is placed precisely on the same footing with verdicts rendered in courts of law.
On the trial of the motion, there was no bill of exceptions filed to the decision of the court; nor was the evidence which went to the jury, and on which they based their verdict, placed upon the record. Hence, upon a well recognised rule of this court, we can notice no exception to the ruling of the court, predicated on an assumed insufficiency of the evidence, to sustain the finding of the jury. The objection, however, mainly relied on, is, that the jury having found only a part of the issues submitted to them, their verdict was insufficient to sustain the decree of the chancellor.
As we have before seen, the jury will be required to ascertain whether the contract had been entered into as alleged in the bill; if so entered into, whether the complainant had been hindered or prevented from performing the contract on his part, by acts of the state architect, or the failure of the state to make payment to complainant, agreeably to the terms of the same. If all of these facts should be found by the jury, then they will be required to assess the damages (if any) which had, by reason thereof, been sustained by the complainant.
If the jury had found that the contract had been made as alleged by the complainant in his bill, they could not have assessed the damages unless they had found the additional fact, also, that complainant had been hindered and delayed in the performance thereof. And it is manifest that the jury could not have found that the execution of the contract had been hindered or delayed by the architect of the state, unless the existence of the contract, as alleged in the bill, had been also established to their satisfaction. As it was, they "found for the complainant, and assessed his damages" at the sum above mentioned. Hence, their verdict must be regarded as a substantial finding of each and all of the issues submitted to *Page 493 them, in favor of the complainant. The first objection is therefore unsustained.
2. The record does not show that instructions were given or refused at the instance of either complainant or defendant We cannot, therefore, notice the objection, that the chancellor erroneously refused to charge the jury as requested by the appellant.
3. We shall, in the next place, notice some of the objections urged to the introduction of evidence on the part of the appellee. The second bill of exceptions shows that a witness was offered, who proved that "He understood, from various conversations between Lawrence, the architect, and complainant, that complainant had given up that portion of his contract which bound him to furnish the lumber, and that Phillips and Rothrock were substituted in his stead; in these conversations complainant regretted that he had consented to give up that portion of his contract, and complained that he was thereby delayed in the prosecution of the carpenter's work for the want of lumber. Witness also stated he knew that complainant was delayed by reason of the failure of Phillips and Rothrock to comply with their contract."
It is insisted that this evidence should have been excluded, because, if admitted, the statements of the complainant would have been made evidence for himself.
The bill embraces but a part of the testimony of this witness, and it is not pretended that the record contains the whole of the evidence adduced on the trial. It is, therefore, impossible for us to determine with certainty that the chancellor erred in overruling the objection to its introduction. For were it conceded that this fragment of the testimony, as it appears in the bill of exceptions, disconnected from the remainder of the evidence before the jury, should have been rejected, it does not therefore follow that it was not perfectly competent, when submitted in connection with the whole of that evidence. Indeed, the opposite conclusion necessarily follows, from the presumption of law, that the decision of the court was correct on another principle. But we think the objection was untenable for another reason. These statements *Page 494 of complainant were made in reference to matters of fact involved in this controversy. They were addressed to the authorized agent of the defendant, and by him not disputed or denied. They were, therefore, evidence in the cause, as the silence of Lawrence must be regarded as an implied admission of their truth. Batturs v. Sellers, 5 Har. John. 119; Coe v. Hutton, 1 Serg. R. 398; Hendrickson v. Miller, 1 Rep. Const. Court, 296.
A similar observation may be applied to the objections made to the introduction of the testimony of another witness, set out in the fourth bill of exceptions. The statement of the witness was, "That Lawrence and complainant told witness that Phillips and Rothrock had been employed to furnish the lumber, and that complainant had been released from that part of his contract by Lawrence."
Another exception to the evidence contained in this bill seems equally untenable. We cannot with certainty know whether the questions propounded to the witness were proper or improper, or that his answers were irrelevant or `incompetent evidence. If the evidence objected to were introduced, as suggested, to explain or rebut testimony adduced by the defendant, it is readily perceived that it might have been perfectly proper to have admitted it; and such conclusion must follow, as we are bound to presume that the chancellor did not err until the contrary is clearly shown. Moreover, the statement of the witness, against which the exception is particularly pointed, is simply affirmative of a fact distinctly admitted by the answer, to wit: that Phillips and Rothrock had been employed by the architect to furnish the lumber required in the construction of the capital.
We deem it unnecessary to notice further the exceptions, taken to the admission or exclusion of evidence offered before the jury, and shall close our examination of this case with a single remark in reference to another objection to the finding of the jury, upon the issues submitted to them.
The objection is this, that these issues were framed in reference to the matters in controversy as presented by the original bill and answer; whereas the amended and supple-mental *Page 495 bill filed in 1847, subsequent to the order of the chancellor, directing the issues of fact to be tried by a jury, with the answer and cross-bill filed thereto by the attorney-general, as it is contended, has materially altered the state of the controversy, whereby the issues previously ordered were rendered inapplicable.
After a careful examination of the record, we do not think that the objection is well taken in point of fact. The answer and cross-bill filed by the attorney-general, has not, in our opinion, produced any such alteration in the matters put at issue, by the original bill and the answer thereto, as to dispense with the necessity of a verdict upon the issues, or to render them inappropriate.
It is also to be remarked, that this objection was not assigned as one of the grounds upon which a new trial was claimed in the court below. Nor does it appear from the record that it was brought to the attention of the chancellor on the argument of the motion. We would, therefore, with great reluctance, entertain the exception in this court.
Let the decree be affirmed.
YERGER, Judge, having been of counsel in the court below, gave no opinion in this cause.
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