Bee Printing Co. v. Hichborn

Bigelow, C. J.

The instructions given to the jury were in conformity with the request made by the defendant on all points except two ; and on those, we think the defendant has no cause to complain of the rulings of the court.

1. The assumption, that the jury were bound,in the absence of all other evidence, by the statement of the defendant as to the amount of damages sustained by him in consequence of a breach of the alleged special contract, has no foundation in principle or on authority. If time, it would require the jury to believe a party to a suit testifying in his own behalf, although they might be satisfied in their own minds, either from the manner of giving his testimony, or the inherent improbability of his story, or other circumstances, that he was either mistaken in his statements or wilfully testifying falsely. But the jury are not obliged to receive evidence which is laid before them passively and follow it blindly, because it is not controlled or contradicted by counter evidence. They are to examine it with care, subject it to the scrutiny of their judgment and experience, and act on it only so far as it seems to them to be reasonable and true. Especially in estimating damages, which necessarily involves the exercise of opinion and judgment, the jury are to be guided by their own skill and knowledge, as well as by testimony which is given by witnesses at the trial. Patterson v. Boston, 20 Pick. 159, 166. Murdock v. Sumner, 22 Pick. 156.

2. On the other point, the instructions were clearly right. The defendant, on the facts in proof, could not set up the special contract in bar of a claim by the plaintiffs in the nature of indebitatus assumpsit on the first count for work and labor done and services performed. After the alleged breach of the contract in July 1860, by the refusal of the plaintiffs to publish certain advertisements sent to them by the defendant, the latter still continued to publish advertisements in the plaintiffs’ newspaper. Instead of relying on his special contract, and, when it was broken by the acts of the plaintiffs, insisting on the breach and claiming damages for its non-performance, he subsequently accepted a part performance of the contract by the plaintiffs. This severed the entirety of the contract. By his own consent, with full knowledge of the breach, the defendant received and enjoyed the benefit of the services, labor and property of the plaintiffs. Although the plaintiffs, if they failed to perform the special contract on their part* are debarred from maintaining any action upon it, yet they have a legal claim for the actual value of the labor and services performed by them, which the defendant has accepted and enjoyed. From the act of the defendant in continuing to send his advertisements to the plaintiffs for publication, after he had notice of the alleged breach by them of the special contract, and thereby taking to himself the benefit of then- subsequent labor, services and material, the law implies a severance of the original entire contract, and raises a promise to pay the amount, which the plaintiffs reasonably deserve to have. Bowker v. Hoyt, 18 Pick. 555. Snow v. Ware, 13 Met. 49. Oxendale v. Wether ell, 9 B. & C. 386. Read v. Rann, 10 B. & C. 439. 2 Greenl. Ev. § 136 a. There is no allegation or proof in the present case, which tends to charge the plaintiffs with any want of good faith in the alleged failure to fulfil the special contract set up by the defendant. They are therefore well entitled to recover the fair value of their services. Snow v. Ware, ubi supra.

In estimating the amount which the plaintiffs were entitled to have for the beneficial enjoyment of their labor and services by the defendant, it was proper for the jury to deduct the loss or damage which he had sustained in consequence of the alleged breach of the special contract. This is allowed to avoid circuity of action, so that substantial justice may be done between the parties in one suit. In this respect, the instructions were correct, and in conformity with the rule laid down by this court in Bowker v. Hoyt, ubi supra.' Exceptions overruled.