Lung Louis & Co. v. Brown

By the Court,

Boise, J.:

This cause was tried on the pleadings in a motion for judgment. The questions are: 1. Was the separate answer of the appellants setting up damages resulting from the failure of respondents to cut all the wood contracted for within the specified time, a good defense, either in form or substance? 2. In case said answer was no defense, was there still an issue which the appellants had a right to submit to a jury ? The allegation in the complaint that the appellants promised and agreed to pay respondents, the reasonable value of the labor being denied in the answer, but it not being denied but that the respondents cut the wood, a promise to pay the reasonable value would be implied unless the special contract avoids that implication, and as the special contract is before us we think its construction will solve both these questions.

A time is fixed in the contract by the parties when the work shall commence and when it shall be completed. There is no intimation in it that the respondents on failing to do the whole work by the twentieth of May shall be allowed further time. But, on the contrary, the reservation of ten cents per cord out of the monthly payments, and the stipulation that on the tenth of June, in case of failure, five cents per cord on all that is then cut shall be forfeited, plainly indicates that the parties intended when they made the contract that a final settlement should be made on the tenth of June, and that the contract should be then finally terminated. If the parties had intended that there should be any other forfeiture, we must presume that they would have specified' it; for the rule is that where the parties have specified in their contract the damages to be paid in case of failure that all damages not specified are excluded.

We think the contract therefore fixed the amount of damages at five cents per cord, and that the appellants can claim no more than that, therefore their separate answer which sets up other damages is no defense.

It is also claimed that as the appellants denied that they agreed to pay the reasonable value of the services for cutting the wood, this raises an issue of fact which the appellants have a right to try.

Where the defendant denies the work, and then sets up a defense in which he acknowledges that the service was performed, it is not necessary that this admitted fact should be proved. If a particular fact is admitted on the record by a party it is a solemn admission, and the party is bound by it, and it is not necessary to call witnesses to prove it.

The fact that the respondents had cut the wood was before the court, stated in the contract and was admitted, and the whole question was as to whether the appellant could claim other damages than those alleged in the contract. The contract, as we view it, was broken by the respondents, but the parties had stipulated in the contract what damages were to be paid for the breach, and these damages were liquidated and before the court, and were properly adjusted in the judgment.

The judgment of the circuit court is affirmed with costs, and disbursements.