
    No. XXIII.
    C. J. O’Connor v. A. N. Van Homme.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—O’Connor v. Van Homme, p. 429.
      Plaintiff can not recover on quantum meruit when suit is upon a contract. San Antonio v. Lewis, 9 T., 69; Gammage v. Alexander, 14 T., 414; Devoe v. Stewart, 32 T., 712; Bellew v. Casey, 60 T., 573; Jones v. Brazile, 1 App. C., see. 299; Stubbs v. City of Galveston, 3 App. C., see. 143; Kocher v. Mayberry, 15 T. C. A., 342. If the contract is only partly performed, recovery may be had on quantum meruit. Gonzales College v. McHugh, 21 T., 256; Carroll v. Welch, 26 T., 147; Hollis v. Chapman, 36 T., 1; Weis v. Devlin, 67 T., 507; Childress v. Smith, 90 T„ 610; Sulzbacher v. Wilkinson, 1 App. C., sec. 994. Contract void under statute of frauds is basis for quantum meruit. Capers v. Stewart. 3 App. C., sec. 291.
    
   TERRELL, Justice.

Homme brought his action in the District Court for the County of Brazoria against O’Connor to recover the value of work and labor done and performed by the plaintiff, Van Homme, upon a house built by him for the defendant O’Connor.

The plaintiff declared upon a special agreement and likewise upon a quantum meruit. The case was submitted to a jury, who returned the following verdict: “We the jury in this case find for the plaintiff four hundred and ninety-one dollars.” Upon this verdict the court rendered the following judgment: “It is therefore considered by this court, ordered and decreed, that the plaintiff recover of the defendant the sum of four hundred and ninety-one dollars, with interest thereon, at eight per cent per annum, from the thirtieth day of October, 1840, until paid, and the costs of this suit.” A motion for new trial was made by defendant’s counsel upon the grounds “that the verdict of the jury was contrary to law, contrary to the evidence, and not supported by the contract of the parties.” Which motion being overruled by the court, the defendant appealed to this court.

In support of the appeal it is urged that the verdict of the jury was not warranted by the contract sued on, and that it was contrary both to the law and the evidence. To determine these points, we must look to the contract or agreement sued on and the testimony given at the trial. By the terms of the contract the plaintiff, Van Homme, bound himself (under a penalty of $500) to perform certain work therein specified upon a house for O’Connor, the defendant—which work he was to complete by the first day of June, 1839. And the defendant, O’Con-nor, bound himself (under a like penalty) to make to the plaintiff a title to the one-half or one-fourth of a league of land, and also. to pay the plaintiff $150 in the promissory notes of the government, etc. The statement of facts shows that according to the proof the plaintiff did not complete the work within the time specified in the agreement; he can not therefore recover upon the writtn contract. The verdict of the jury, however, is evidently founded upon the demand of a quantum meruit. We must therefore direct our inquiry to the question whether this finding is supported by the testimony? To authorize an abandonment of the written contract declared upon, and a finding upon a quantum meruit, there must have been some new contract between the parties—some new agreement, either written or verbal between them; or there must have been some default on the part of the defendant which put- it out of the plaintiff’s power to comply with the written agreement on his part, or excused him from its performance. It is a well settled principle in the law of contracts that if A undertakes to perform certain work for B in a particular manner, or by a specified time, and B, by some act of his, put it out of the power of A to comply with the contract as made, B shall not be permitted to take advantage of his own wrong and force A to a specific performance; but A shall recover the value of his labor. In support of this position, numerous authorities might be cited, if necessary. In Chitty on Contracts, page 169, it is laid down: “If a man declare upon a special agreement, and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from the one laid, he can not recover on either; but if he prove a special agreement, as laid, and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit, for otherwise he would not be able to recover at all.” To the same point see Bul. N. P., 139; 2 Starkie, 95.

In Lirmingdale v. Livingston, 10 Johnson, 36, the Supreme Court of New York say: “It is (in Bul. N. P.) admitted to be now the rule, that if there be a special agreement, and the work be done, but not in accordance with it, the plaintiff may recover upon a quantum meruit,” etc. And Lord Mansfield ruled, in Harris v. Oke, “that when the evidence would support a general count (supposing no special agreement laid) the plaintiff may recover upon it, though there be a special agreement laid, whether he attempt to prove it or not.” These decisions carry the principle even further than the general propositions which we have laid down above for the government of this case. We will now apply the facts to the principles laid down, and see whether the finding of the jury was contrary to law and contrary to evidence. According to the “statement of facts” contained in the record, the defendant O’Connor was to furnish the lumber for the building of the house. Carman, a witness called by plaintiff, proved that he once heard Van Homme complain that he had not a sufficiency of shingles to cover the house—that at that time there was a great scarcity of lumber, and it was difficult to obtain, etc.; he did not know, however, that there was not a sufficiency to finish that house, etc. Peter Latimer was also examined for the plaintiff, and stated among other things, he had often seen the plaintiff at work on the house referred to by the first witness, both before and after the 1st day of June, 1839. He stated that in the month of June or July, 1839, he heard Van Homme, on several occasions, complain to O'Connor that the necessary lumber was not furnished to do the work. In June or July, Van Homme called on O’Connor in presence of witness to furnish shingles to cover the house; and witness knew they were wanted for that purpose. There was a great scarcity of lumber in the town at the time the work was going on, etc. There was a good deal of contradictory testimony in the case. Pilkington, a witness called fop the defendant, stated that O’Connor did a considerable portion of the work that was done to the house, and that before Van Homme began the work, O’Connor had nearly prepared the frame to be raised; that the materials (with the exception of the rafters) for building the house were prepared and collected nearly twelve months before Yan Homme commenced the work; that Yan Homme was frequently working for other people, when he had a sufficiency of materials before him, etc.; that he had frequently heard O’Connor request Van Homme to proceed to finish the house, and that Van Homme neglected to do so. That after the 1st of June, O’Connor told Yan Homme if he would proceed and finish the house, he would not exact from him the forfeiture; that in August Van Homme said he had not time to work any longer, and left for Austin, etc. E. M. Pease, another witness called on the part of the defendant, sustained Pilkington in the most material statements made by him.

The question then recurs upon this statement of facts: Hoes the evidence sustain the jury in the verdict they have rendered? That it is variant, and in some degree contradictory,, can not be denied. It is not for the court to attempt to reconcile these contradictory statements, or to give the preference in point of credibility to one set of witnesses over the other. That is the sole province of the jury—they have exercised that privilege, and it is not for this court to say, in the absence of all grounds for the assertion, that the jury have mistaken the facts or placed a wrong estimate upon the credibility or the legal effect of the testimony. If the jury gave full credence to the testimony of the witnesses Carman and Latimer, they prove the fact conclusively that O’Connor put it out of the power of Yan Homme to comply with his contract by failing to furnish the necessary materials to finish the house by the time specified in the agreement. Both those witnesses say, that in the month of June or July (which must have been after the first of June) they heard Yan Homme complain of the want of shingles to cover the house. If he had not furnished them some time in the month of June or July, it is conclusive that he had not furnished them before the first of June; consequently, it was put out of the power of the plaintiff to comply with the contract by the act of the defendant himself. Therefore the special agreement was no longer subsisting or in force between them, but had been put an end to by the conduct of the defendant himself, in failing to furnish the necessary materials for the building. Consequently the plaintiff had the right to abandon his written contract and rely upon a quantum meruit.

But even if the plaintiff had failed to perform his part of the obligation, the defendant by his subsequent conduct waived all the legal advantages of that failure. If he intended to rely upon a breach of covenant on the part of the plaintiff, it was his duty immediately to have notified the plaintiff of that fact; and not to have suffered him to continue in his employ through the months of June, July and part of August ensuing, which it is in proof he did do; and by the defendant’s acquiescence in which, he deprived himself of all the benefits he might have derived from the plaintiff’s failure to comply with his part of the contract; and by which he, tacitly at least, created a new obligation upon himself to pay to the plaintiff whatever his labor was reasonably worth.

The jury have said that labor was worth $591. One of the witnesses!; a carpenter, too, said it was worth five or six hundred. Under all the circumstances, therefore, we do not think it right to disturb the verdict of the jury, and consequently we affirm the judgment of the court below with costs.

Affirmed.  