Alexander v. Hoffman

The opinion of the Court was delivered by

Rogers, J.

This was an action on the case to recover compensation for work and labour under special agreement. The plaintiff avers a general performance, and alleges specific breaches of the contract by the defendant. It is conceded that neither party performed his part of the agreement literally, but the plaintiff insists that he was prevented from performance by the default of the defendant. And this raises the first question; for the defend*384ant alleges, that admitting this to be true, notwithstanding, no recovery can be had on a declaration containing a general averment of performance. He insists that the plaintiff should set out his excuse for failure to perform his part of the agreement. The object of a declaration is to give notice of the cause of action, and this would not be done, if the plaintiff was at liberty to aver general performance, and support his action by evidence of an inability or prevention to perform by the default of the opposite party. The defendant would come prepared to meet one charge, and would be compelled to defend himself from a charge of a different nature. 1 Saund. 204; 2 Chitty P. 400 ; 1 Saund. P. & E. 146; Cassel v. Cooke, (8 Serg. & Rawle 296). The court was wrong, as we think, in instructing the jury, that under the evidence and declaration, the plaintiff might recover; the allegata and probata did not agree.

It is necessary for the plaintiff to prove one of the two things, either that he has fully complied with his contract, or he must satisfy the jury that he was prevented from performing by the failure of the defendant to pay according to the stipulation in the agreement. In the latter case, he will be allowed for his labour a sum, the amount of which the jury will decide under all the circumstances, deducting for the injury, if any, arising from any failure of the plaintiff to do the work at the time stipulated. I cannot agree with the defendant, that the only remedy, if the plaintiff was dissatisfied with the defendant’s performance, was by refusing to proceed and abandoning the contract, giving notice to the defendant and looking for damages. He might have pursued this course, if he would, but he was not compelled to do so. It would be against equity, if he could not recover the amount due for his labour, when he pursued his work with the knowledge of the defendant, and without objection, so far as appears in the evidence. It is not our intention to express any opinion on the merits. That is a matter for the judgment of the jury, as the case goes down for another trial, depending on its peculiar circumstances, and as such, is proper for their decision. They are a tribunal fully competent to do justice between the parties.

In the course of the trial, the court permitted the plaintiff to give in evidence his book of original entries, we think, improperly. 1. Because it is a book of original entries to prove a delivery of goods under a previous contract for their delivery at different distinct periods. 2. Because the book does not purport to charge the defendant, but seems to be an account against labourers employed by him in the work. Lonergan v. Whitehead, (10 Watts 249); Gamber v. Wolaver, (1 Watts & Serg. 66).

We perceive nothing in the remaining bills, nor in the charge, which is exceptionable.

J udgment reversed, and a venire die novo awarded.