Marshall & Van Cleve v. Ames

F. H. Ames entered into a contract with Marshall and Van Cleve to move for them a house, the house being situated on Wilson avenue, and they were to move it up Hawthorne avenue and locate it on Hawthorne avenue.

*406The following was the contract made between them:

“ I hereby agree to move for A. 13. Marshall and H. B. Van Cleve the frame house on Wilson avenue recently occupied by Edward Hotchkiss, through Wilson avenue to Hawthorne, and down Hawthorne to the lot adjoining the residence of H. B. Van Cleve, setting same upon the foundation satisfactory to the architects, Eehman & Smith, for the sum of nine hundred ninety-seven and 50-100 ($997.50) dollars. 1

“ I further agree to put the house down on its foundation in as good condition as it is now, taking all risks of moving connected therewith, with the exception of the two outside chimneys, which shall be moved with the utmost care, but at the risk of A. B. Marshall and H. B. Van Cleve. It is further agreed by me that the building shall be off of its present location and in Wilson avenue not later than May 10, 1892, and the whole job done to the full satisfaction of the aforesaid A. B. Marshall and H. B. Van Cleve, the job to be paid for in cash when completed, but the money to be advanced as required for help in proportion as the work progresses; the work to be commenced Thursday, April 21, and pushed forward without interruption, aside from what may be necessary from the weather, to completion.

“ F. H. Ames.” :

The controversy in this case, and the question on which the case comes to us on error, is the manner in which the judge below, disposes of these two conditions of the contract: that it is to be on the foundation in a manner satisfactory to the architects of the contractee; next, that the building, when completed on the foundation and ready for occupancy, shall be to the satisfaction of Van Cleve and Marshall.

The plaintiff below, the mover, when he declared upon this contract in his petition, declared upon it as modified — that is, upon a modified contract — and the first error here complained of is that the petition did not set forth the consideration for the making of the modified contract, and that the court overruled a demurrer to the petition, and that that was error. Granting that to be true, the court refused any testimony on the modified contract, because the pleading did not set forth any consideration for the making of it; that there was no new consideration or valuable consideration for the making of the modified contract, and the court therefore at the trial ruled correctly, as we think. The court, in charging the' jury, took this view of the contract, that before the mover could have an action for damages he must prove that he at least substantially complied with the contract, and if he has failed to do this, if he has failed to substantially comply with the terms of this contract, “ then your verdict should be for the defendant.” I might here say that the pleadings of the plaintiff below proceeded as though this had been an ordinary contract; as though there had been no agreement to do the work to the satisfaction of Van Cleve or of the architect, and the court followed the same line, and the whole matter was presented as though the owner was to accept when the contract was substantially complied with, and not the question whether Van Cleve and the architect were satisfied or not; but that it Ames had substantially complied with the contract, and his failure to comply was only incidental, it was an error which does not affect the contract, but only a loss which could be estimated in damages. Any injury to the defendant which may be estimated, I think, he would be entitled to recover for the loss, and whatever damages there may be by reason of the plaintiffs not complying with the contract. Then the court defines this word “satisfaction”: “It must be to the satisfaction-of Mr. *407Van Cleve, or it must be to tbe satisfaction of tbe architects representing him. Thát satisfaction or this satisfaction must be in good faith, predicated on some substantial failure of the plaintiff to perform his contract.” It is claimed that it was error that the court there said that notwithstanding this contract was to be performed to the satisfaction of the parties, as it had been agreed between themselves as to the consideration, and I'have gone over that point, as well as the other .points of the contract, that nevertheless, if the party had substantially performed that contract, notwithstanding the fact that Van Cleve might be dissatisfied, and dissatisfied because plaintiff in error had not fully performed it; notwithstanding that, yet the mover might recover. The judge, in his charge, makes a distinction between the case where this court decided a few years ago, in Wilber v. Bingham, 2 Circuit Court Decisions, 262, which was this, that in this city a party took a contract for putting in a furnace, which furnace should be and should work to the satisfaction of the party who was to receive it. The party said the furnace did not work to his satisfaction, and suit was brought to recover the contract price of the furnace, and it was undertaken to be maintained before this court that if he had substantially complied with the contract, then the party must ‡ake the furnace, whether he was satisfied or not; but this court held otherwise, and held that if he was dissatisfied and had good cause to be dissatisfied, and acted in good faith in his dissatisfaction, then the contract could not be considered fulfilled. Now, the judge distinguishes between that case and a case where a man had a house to move, in that the house could not very well be taken back, and that there could not be a change of possession, and that hence there necessarily' is a change, as here claimed, of the rule of law; that there should be a difference, and therefore that the rule should not be that there should be a. compliance with the contract to the satisfaction of the party, but that there should be a substantial compliance with what was to be done in the contract. Now, our own supreme court has spoken on this in the 42 Ohio St., 41, Barrett v. Hart. A chattel mortgage contained the following:- “If the said party of the second part shall at any time deem himself in danger of losing said debt, or any part thereof, by delaying the collection thereof until the expiration of the time about limited for the payment thereof, * * * said party of the second part is hereby authorized to take possession of said goods * * * at any time, whenever found, either before or after the expiration of the time aforesaid.”

The question there arose as to whether the party acted in good faith; whether that was sufficient, or must have reasonable cause to believe that he will lose said debt, and a number of cases were cited from different states, some of which held that there must also be good cause as well as good faith. Our supreme court says that it is not the rule in Ohio. The mortgagee should act in good faith, and- his mind should be controlled by the facts arising under the making of it, in regard to the condition of the property mortgaged. So far as this case determines the law, it is exactly as the circuit court determined it in the third circuit court reports; that is, that the party is to be satisfied, and if he acts in good faith, then he is justified in his conclusion, and if he is acting in good faith and is dissatisfied, then he complies with the rule that governs in this case, and if the parties have so contracted, that is the contract, and to hold otherwise is to change the contract.

We think the court erred in his charge, and the party is entitled to have the case reversed and remanded for a new trial.