
    William M‘Cormick against John Connoly.
    
      Charleston District,
    
    1802.
    Where a contract is made for building a house, and additions or alterations are made in the plan, ho. the original contract shall remain, and not be set afloat for that reason.
    Tradesmen and contractors, making out bills for materials and workmanship regardless of their contract, not to be allowed. The original contract in all such cases, shall be the basis of the charge, and all additions® &e. shall form, extra charges.
    ASSUMPSIT for work and labour in building a house on Sullivan's island. Verdict for the plaintiff. Motion for a new trial.
    The plaintiff in this case, offered in evidence a bill of materials, and also another for the workmanship in building the house, together with a measurement and valuation by three carpenters, in which they gave it as their opinion, that the plaintiff was well entitled to the sum of three hundred and ten pounds sterling, for his materials and workmanship, &c. but the defendant had no notice when they were to meet to make this valuation, nor was he present when it was made.
    On the part of the defendant, it was proved, that there was a contract or special agreement made for the erection of this building between the parties, and that the plaintiff had contracted to build a house of the same size and dimensions as that of I. H. Stevens, a neighbour on the island, at and for the price or sum of one hundred and fifty pounds sterling ; and that in pursuance of this agreement, the plaintiff proceeded to measure Mr. Stevens’s house, and soon after went to work. That there was no difference in the plan or dimensions of the two houses, except that instead of the roof springing or rising from the side of the house, the piazza and body of the building were covered by the same roof. The defendant on his part, admitted, that there were four dormant windows in the house which were not in Mr. Stevens's house, which he was willing to pay for at a just valuation.
    On behalf of the plaintiff, it was argued, that whenever an agreement or contract is entered into for building a house, and there is a variation in the plan or additions made which were not in the original agreement, then in every such case, the contract is set afloat or rescinded ; because, it is no longer the one originally made, but a new one; in which the builder has a right to charge for his materials and labour at the usual and accustomed prices, unless a specific price is agreed upon in the last contract; and that this had been the custom of master builders in Charleston for many years past.
    Tor the defendant, in reply, it was admitted, that of late years, there had been instances in Charleston, of contracts having been eluded and set afloat for trifling or inconsiderable alterations in the plans of the buildings, but that it was an erroneous principle, subversive of justice, and a most unwarrantable exaction on the part of builders, who had always confederated together to support one another in those exorbitant charges and, demands. That the community had often groaned under these exactions on the part of tradesmen, and that it was now high time to make a stand against them, and put the principles upon which these unreasonable demands were founded, to the test of law and substantial justice. In the present case, the original contract was for one hundred and fifty pounds sterling, with which the plaintiff had agreed to be perfectly contented ; but owing to the trifling alterations, which would not have made the difference of fifty dollars, according to the best calculations, he had gone off from the first contract and had trumped up an account for materials and labour, &c. to the enormous sum of three hundred and ten pounds sterling, which had been vouched by other respectable tradesmen. This, it was said, was such an imposition, as could not be tolerated or supported in a court of justice. It was admitted by the counsel for defendant, that every contract ought to be upheld and maintained with good faith, and that whenever there were additions or alterations made in a building contracted for, that such additions and alterations ought to be paid for at a reasonable valuation ; but, that every other part of the contract should remain unaltered by it. This construction would go to support and maintain contracts, and at the same time do justice to tradesmen for all extra work ¿one : whereas, the construction contended for by the plaintiff, went to destroy contracts, and render them uncertain, and to lay the foundation for those unwarrantable exactions which this city had so long la-boured under, contrary to every principle of reason and justice.
   The presiding Judge, (Grimke,)

in his charge to the jury, mentioned, that however this practice of setting aside original contracts for buildings, on account of additions and alterations had got into common use in this city, and into use throughout the country in general, it was neither founded in law nor justice. That on the contrary, the wisdom and policy of the law was to uphold and maintain contracts where they were fairly entered into ; and that in all cases, where there were alterations and additions made in buildings, such should be paid for, without altering or affecting in the least the original contract.

The jury, however, contrary to the charge of the judge, found a verdict for the plaintiff to the whole amount of his demand, agreeably to the valuation of the carpenters who valued the work.

This was therefore a motion for a new trial, on the ground of the verdict being against law, and the opinion and direction of the judge who tried the cause.

The same grounds which had been taken by the counsel on the trial of this cause, were again urged for and against this motion for a new trial; only, that it was strongly urged, on the part of the defendant, that it was high time the law on this point was finally settled, as this was a never failing source of litigation in the community.

The Judges,

after consideringthis case fully, and hearing the arguments, were all of opinion, that the law as laid down by the presiding Judge to the jury in this case, ought to be supported and maintained in the construction of contracts. That whatever the practice might hitherto have been among the master builders in Charleston, in making out bills for materials and labour, in cases where there were additions or alterations in buildings contracted for, without any regard to such contracts, it was erroneous in principle and illegal. Wherever a contract is made for any building of any size or dimensions, it becomes a law to the parties, and they are both bound by it; and wherever additions or alterations are made in such buildings, they become a new or additional contract, either express or implied, without affecting the original contract, and must be paid for agreeably to such new contract'if a sum is fixed for that purpose,, but if not, then according to a just and reasonable valuation.

It is a just maxim, that in the construction of covenants and agreements, such a one should always be given as would uphold and maintain good faith between man and man, rather than to defeat the intentions of the parties to the covenant ; to give the construction, therefore, urged by the plaintiff’s counsel in this case, would, in opposition to this maxim go to defeat entirely the original' contract between the parties ; but on the contrary, the other construction will support and maintain both the contracts between the parties. The amount of the first contract, should form in every case of this kind the basis of the charge, and the extra work should constitute the additional charges which were not included in the first contract. In Peake's Nisi Prim, 103. the same principles are laid down as recognised in the English courts, and the. rule is worth} of adoption in this country as being founded on reason and justice.

Ward, for plaintiff, M-Credie, for defendant.

Let the verdict be set aside, and the rule for a new trial be made absolute.

All the Judges present.  