source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    William H. Van Buren, Plaintiff in error, v. William H. Digges, Use of Joseph Libbey.
    Where a contractor engaged to build a house for a certain sum of money, and the owner of the house, when sued, offered to prove that there were' various omissions in the work stipulated to be done, and portions of the work were, done in a defective manner, not being as well done as contracted for, and filed a bill of particulars of these omissions and defects by way of set-off, this evidence was admissible. ■ - The old rule, that, where a party shall have been injured, either by a partial failure of consideration for the contract, or by the non-fulfilment of the contract, or by breach of warranty, he must be driven to a cross action, has been much relaxed in later times. The case of Withers v. Greene (9 Howard, 213) referred to and reaffirmed.
    Where the contract provided that,df the house were not finished by a certain day, a.deduction of ten per cent, from the price should be.made, and the defendant offered evidence to prove that this forfeiture was intended by the parties as liquidated ■ damages, the evidence was properly rejected. It would have been irregular in the court to go out of the terms of the contract- Unless the forfeiture had been expressly adopted by the parties as the measure of injury or compensation, it would have been irregular to receive the evidence where the inquiry was into the essential justice and fairness of the acts of the parties.
    Where the defendant offered to prove that certain work which he, the defendant, had caused to be done by a third person, was usual and proper, and necessary to the completion of the house, this evidence was properly rejected. He should have proved that it came within the contract. So, also, evidence was inadmissible that the defendant, in presence of the plaintiff, insisted upon its being within the contract; for this would have been making the defendant the judge in his own case.
    Mere acquiescence by the contractor in the defendant’s causing certain work to be done by a third person, will not exclude the contractor from the benefit of having further time allowed to finish the house. It was not necessary for him to make a special agreement that further time should be allowed, in consequence of the delay caused by this extra work.
    This case was brought up, by writ of error, from the Circuit Court of the United States, sitting for the County of Washington, in the District of Columbia.
    Oh the 7th of August, 1844, William H. Digges and William H. Van Burén entered into a contract in the city of Washington, as follows: —
    t! It is hereby agreed, between William Digges, of the city of Washington, carpenter, of the one part, and W. H. Van Burén, M. D., of the othér part, as follows:—

      u First. The said William Digges agrees to build, or cause to be built, for the said W. H. Van Burén, a house, with office, back buildings, woodhouse, stable, and privies, in the style and of the materials set forth in the following specifications, and represented in the accompanying plan, to wit: —
    '(Then followed numerous specifications.)
    “ Second. That the said W. H. Van Burén is to pay to said William Digges for the house built and finished as above specified, the sum of f 4,600 in gold or silver current money of the United States, or its equivalent in bank-notes, in the following manner; viz. $ 1,000 on the 1st day of September, $1,000 on the 1st of October, $1,000 on the 1st of November, and $ 1,600 on the day that the house is entirely finished and fit to occupy; provided that it shall not be later than tle 25th of December, 1844; he, William Digges, to forfeit ten per cent, on the whole amount if said house is not entirely completed and fit to occupy at the time agreed upon, viz. December 25th, 1844.
    •“ If there should be any matters of detail or finish, or matters not specified properly, and usually attached to or necessary to the completion of a house such as the one above specified, such things are to be considered as included in this agreement.
    “ If any disagreement should occur between the parties in this agreement with regard to matters above specified, such disagreement shall be settled finally and without appeal, by three persons, one of whom to be selected by each of the parties, and the third chosen by the persons thus selected, and, if necessary, by lot.
    “ In witness whereof, the said parties have hereunto set their hands and seals this 7th day of August, in the year of our Lord 1844.
    “• W. H. Digges,
    Wm. H. Van Burén.
    “ Signed and sealed in presence of—
    Tul Lawson,
    T. P. Andrews.”

      An' additional Agreement.

      “ The undersigned hereby agree to the alterations of, and additions to, the above contract mentioned below; and also that this additional agreement shall in no respect invalidaté the above contract, except in the specifications herein contained, to wit: that in place of 1 the attic story with rooms,’ &c., as specified in the-above contract, "W. H. Digges is to build a third story, divided and finished in all respects like the second story, as specified above, except that the ceiling shall have nine feet pitch in the clear, and that there shall be' a window on the stairway in the back i wall, and a window on the gable end of the main building. on the passage, each of the same size as the other windows of the story, and all to be double hung; and also a garret, floored, plastered, and divided as agreed upon, with the necessary stairways, in the best manner, and with the same material employed in the second story. The passage in the garret to have a semicircular window, with a base of equal width with the windows of third story, and made to slide into a'frame in the wall, and each garret room to .have a window on the east gable, except>the small room on the passage, which is to bé fitted up as a closet, with shelves and drawers, as specified for the corresponding room in the ‘ attic story ’ of the original agreement.
    “ And also, that for the third story and garrets as herein specified, W. H. Van Burén is to pay to. W. H. Digges the sum of $ 525, when they shall be completed, in addition to all other payments already provided for. ‘ Pitch of second story to be reduced to eleven feet in the clear.’
    “ Signed this 1st day of September, 1844.
    “ Wm. H. Van Burén,‘ W. H. Digges.”
    On the 26th of June, 1845, Digges filed an account with the clerk of the Circuit Court, under the act of Congress passed on the 2d of March, 1833 (4 Stat. at Large, 659), entitled “An Act to secure to mechanics and others payment for labor done aná materials furnished in the erection of buildings in the District of Columbia”; and claimed the lien given by that act. The account was as follows: —

      Account.

    Dr. William H. Van Burén to William H. Digges. — Dr. 1845, April 21.
    To the price of the contract for building, &c., on lots 11 and 12, in square 169, .... $4,600.00
    To the addition thereto, and alteration in .the plan thereof, as per agreement of 1st September, 1844, . 525.00
    To additional extra work required by you to be done on said building, not specified in said contract, or the additional agreement aforesaid, viz.: —
    Paid bricklayers for extra work, . . . . . 101.71
    Removing fence, . . . . . , . 7.00

      Grading the yard, ... ... 12.00
    Window in the gable end of main house, . . 25.00
    Two closets in the office, . . ■ . . . . 14.00
    Two do. dining-room, . . . . 15.00
    Snow breakers on the roof,.....6.00
    Cutting three holds in parlor floor for furnace, . 1.50
    Cutting ^ window in gable end, .... 2.50
    Fixing sliding door in closet between dining-room and kitchen,........20.00
    Shelf connecting cases in the office, . . ' . 6.50
    To extra additional size of closet in office, . . 6.50
    To two course brick additional height of third story, 11.50
    To plastering the additional height, .... 3.64
    To extra width of three frames back of the house, . ■ 21.00
    $ 5,376.85
    On the 31st of January, 1846, Digges sued out a scire facias, on which the marshal returned made known. The defendant then put in a plea of non-assumpsit, and the case went on regularly in that form, no declaration having ever been filed, but it was agreed that a declaration should be considered as if embraced by the record.
    In April, 1847, the following notice of set-off was filed: —
    “ Wm. H. Digges v. W. H. Van Burén. — Notice of Set-off.

    “ Take notice that the above-named defendant, on the trial of this cause, will give in evidence, and insist, that the above plaintiff, before and at the trial of the commencement of this suit, was and still is indebted to the said defendant in the sum of seven hundred and seven dollars for divers materials and other necessary things made, done, furnished, used, and applied in and about a certain building that the plaintiff had undertaken and contracted to build for the defendant, at the county of Washington, in the District of Columbia, and which said materials and things Were so used, applied, done, and finished on account of, and in behalf of, at the special instance and request of, the plaintiff; and also in the sum of seven hundred and seven dollars for money by the defendant before that time paid, laid out, and expended for the plaintiff by the defendant, on account of and on the behalf of the said plaintiff, under his contract asÉaforesaid, and by his special instance and request; and that the said defendant will set off and allow to the said, plaintiff on the said trial so much of the said several sums of seven hundred and seven dollars, so due and owing from the said plaintiff to the said defendant, against any demand of the said plaintiff, to be proved on the said trial, as will be sufficient to satisfy and discharge such demand, according to the form of the statute in such case made and provided.

      “ Dated this day of April, 1847.

      “ H. May, Defendant's Attorney.

      “ To Wm. H. Digges, Present.”
    “ Memo.— A particular account of the above set-off is hereto annexed. H. May, Defendant's Attorney.

      Wm. H. Digges to W. H. Van Burén, Dr., to amounts paid.

    1844.
    Nov. 5.- Charles E. Craig, for painting and pencilling
    front of house, . . ... . $ 40.00
    Dec. 23. R. J. & W. Brown for cornicing-parlors and
    vestibule, and centre-pieces with hooks, &c. 75.90
    Dec. 24. Do., for plastering house, . . . 30.00
    1845.
    Jan. 4. P. L. Coltman, for paving, &c., . . . 109.85
    Feb. 5. Thomas Curtes, for bricks and digging, &c., 40.00
    “ R. O. Knowles, for fencing walls, &c.,. . 44.55
    Mar. 10. Thus. Curtes, for digging and curbing, &c., 26.26
    “ 27.- Lewis H. Schneider, for hanging bells, &c., 57,63
    Apr. 3. Thos. Curtes, for screws, gravel, bricks, &o., 22.21

      “ 30. F. H. Darnell, for painting, . .. . 15.00
    May 2. S. W. Wheeler, for shelves and repairs and
    jobbing,..... 13.25
    “ 3. F. & A. Schneider, for kitchen crane, rings
    to manger, . . . ... . 4.87-
    “ 9. Do., for 4 night latches and putting on same, 5.50
    “ 10. Taylor, for paving, repairing gate-piers, and
    pointing walls,...... 28.17 '
    “ 12. -Hughes, for sodding and work about yard,’ 41.50 ■ <l 27. Hervey Emmert, to repairs to spouting, ’ . 13.87
    July 2. C. L. Coltman, for paving stable-yard, . 57.98
    “ 2. ■ R. O. Knowles, for closets in chambers, and
    repairs, .......58.75
    Sept. Bessy, for steps, &c., .... 24.00
    Sundry amounts paid for repairs and jobbing, 38.75 To amount paid for rent of house occupied by defendant from 25 Dec., 1844, to 16 April, 1845, . . 155.16
    In March, 1847, the cause came on for trial, when the jury, under the instructions given by the court, found a verdict for the plaintiff- for $ 1,223.21, with interest from the 21st of August, 1845, and costs.
    The bills of exception were as follows: —

      . Defendant's First Exception.

    Van Buhen v. Digges, Use of Libbey.

    “ The plaintiff, in support of the issue joined upon the plea of " non-assumpsit, produced and'proved written contracts between the parties, as follows (copied in pp. 461-463), and further offered evidence tending to prove that he had executed the work therein stipulated for, and had delivered it to the defendant, who received it without?objection. And thereupon the defendant offered to prove, by competent witnesses, that, before receiving, the said work, and during the progress thereof, he had objected to the sufiicier iy of various parts of the same as a compliance with the contract, and had communicated said objections to the plaintiff, and that there were various omissions of work stipulated to be done; and various portions of the work con-, tracted for were done in a defective and inferior manner, and not as well as contracted for by the plaintiff, and that some of these defects were not and could not be discovered by the defendant until after the defendant had entered into the possession and üse of the house; and the defendant offered to prove, by way of set-off, and having filed a bill of particulars of said alleged omissions and defects, and given due notice thereof to the plaintiff, and of his. purpose in reduction of the contract price of the whole work sued for by the plaintiff, the value of said omissions, and the difference in value between the actual work defectively executed and that contracted for; to which. evidence so offered, or any of it, the plaintiff objected as inadmissible under the issue; and the court, on the objection of the plaintiff so taken, refused to admit any of said evidence for said purpose; to which refusal the defendant excepts, and tenders to the court this his bill of exceptions, which is thereupon signed and sealed, this 14th, day of April, 1847,.
    “ W. Cranch,
    ■ James S. Moesell.”

      Defendants :Second Exception.

    “ In addition to the evidence contained in the aforegoing bills of exception on the part of defendant, and which áre' made a part hereof, the defendant, for the purpose of informing the court as to the relation and situation of the said defendant in regard to the said house, and the plan and building thereof, and the said plaintiff, at the time of the execution of the contract aforesaid, and the circumstances surrounding the-p'arties, and leading and inducing to' the said contract, offered evidence by T. P. Andrews, a competent witness, and who was present at the execution of said contract, and signed the same as a witness, tending to prove that the said defendant intended to reside in the said house with -his family as their permanent home; that the site of the same was “selected by him on account of its great convenience to be a place of business ; that'the plan thereof wras, in many respects, peculiar, and according to his own plan, and intended for his own convenience and professional habits ; and that the amount of ten per cent, on the contract price, stipulated by the contract aforesaid to be forfeited if the said house was not entirely, finished and fit to occupy, sí therein provided, on the 25th of December,' 1844, was intended by the said parties, at the time of entering into said contract, as and for the liquidated damages that would result and fairly belong to the said defendant by reason of said failure to finish the said house on the 25th of December, 1844; to which said offered evidence, and every part thereof, the plaintiff objected, and the court refused to hear.the same; to which refusal of the court the defendant, by his counsel, ex-eepts, and prays the court to sign, seal, and enroll this his bill of exception, which is accordingly done, this 15th day of April, 1847. W. Cranch,
    James S. Morsell, James Dunlop.”

      Defendant's Third Exception.

    “ Upon the further trial of this cause, and in addition to the evidence contained in the aforegoing bills of exceptions, the plaintiff having given evidence tending to show that the said defendant, while the said house was being built, made a contract for an alteration in the style and finish of the plastering of the said house, which contract was made with a third person, and not with the plaintiff, and thereby the execution of the work on the .said building was delayed beyond the said 25th of December, 1844; the defendant offered evidence tending to prove that the said plastering, and the style and finish thereof, was usual and proper and necessary to the completion of the said house; and further offered to prove, that at the time of the execution of the said plastering the defendant, in the presence of the plaintiff,, insisted on and required him to execute the same as a part of his contract, and that he refused so to do. To the admissibility of which said offered-evidence, and every part of it, the plaintiff objected, and the court refused to permit the same or any part thereof to go to the jury; to which refusal the defendant excepts, and prays the court to sign, seal, and enroll this his exception, which' is accordingly done, this 15th day of April, 1847. W. Cranch,
    Jas; S. Morsell,”

      Defendant’s Fourth Exception.

    “ On the further trial of this cause; and after the evidence contained in the foregoing bills of exceptions, and which are made a part hereof, the defendant offered evidence tending to prove that he had paid, laid out, and expended various sums, of money to various persons other than the plaintiff, for and on account of the omissions and deficiencies 'in the work and materials done and furnished by the plaintiff, and omitted to be done and furnished by him under his said contract; and offered to prove, in connection therewith,:^hat such omissions and-deficiencies were in and about the work and materials furnished and done by the plaintiff'under his said contract; but the said plaintiff objected to the admissibility of the said offered evidence, and every part thereof, and the court refused to allow the same, or any part thereof, to go to the jury; to which refusal of the court the defendant.excepts, and prays the court to sign, seal, and enroll this his exception, which is accordingly done, this 15th day of April, 1847.
    W. Cranch,
    .Jas; S. Morsell.”

      Defendant’s Fifth Exception. .

    “Upon the further-trial of this cause,., the plaintiff having given evidence in addition to that contained in the aforegoing bills of exceptions, and which are made a part hereof, tending to prove that he had, at the request of defendant, in addition to the work and labor and materials provided for in the Said contract, done and performed certain extra -work, and furnished extra materials on and about the said house and premises, and for which he claimed extra compensation and damages over .and above the amount specified in the said contract, and the defendant, .having offered'evidence tending to prove that-he did not consent to any extension of the time for completing the said house 'as provided by the said' contract-, prayed the court to instruct the jury, that if, from the whole- evidence aforesaid, the jury shall believe that any extra work ordered or sanctioned by defendant beyond that provided for by the written agreements did not entitle.the plaintiff to any extension of time in the completion of said work, unless the jury shill find that at the time of agreeing for said work it was distinctly understood that extra time should be allowed in consequence, and then only to the' extent of the time actually agreed upon, or in' the absence of. any agreement for .a precise time, to such extent as-was reasonably necessary for such extra work; which instruction the court gives, and on the prayer of the plaintiff adds-thereto: But the court further instructs the jury, that the defendant is riot entitled to set off in this action the sum. of ten per cent, on the amount of the contract mentionéd in the proviso in the said contract, nor any damages which may have resulted to the defendant by any delay on the part of the plaintiff in completing the said house, and delivering the. same to the defendant on the said 25th. of December, 1844. To which modification of the court and instruction on the part of the plaintiff^ as above granted, the defendant excepts, and prays the .court to sign, seal, and enroll this his bill of exceptions, which is accordingly done, this 15th day of April, 1847.
    W. Chano», ' ■Jas. Dunlop.”

      Defendant's Sixth Exception.

    “ And the said plaintiff, having further given evidence tending to show that, after the plastering of the said house, had been begun, the defendant entered into a contract with the plasterer to make cornice and centre-pieces for the parlors and passage, that a delay in the work for a week was occasioned by the negotiation leading to the said agreement, and a further delay of two weeks was occasioned by the work required • on the said additional plastering, and part of the same being frozen insomuch that the said plasterer did not and could- not finish the said work until some days after the said 25th of December, 1844, and much of the carpenters’ work and the painters’ was ■thereby postponed and delayed until after' the said day; the said defendant then gave evidence to show that the plaintiff knew of the said agreement for the said additional plastering, and did not object-thereto.
    “ And thereupon the defendant prayed the court to instruct the jury: If the jury shall find, from the evidence, that any delay was caused in completing the work in consequence of the extra plastering in the parlors and passage, done under the distinct contract between the defendant and Messrs. Brown, given in evidence, and-they shall further find that said extra- plastering was so done with the full knowledge and sanction of the plaintiff, and without any understanding between him and the defendant at the time, that in consequence thereof a further time should-be allowed for . completing the building, then the plaintiff is not entitled to any further time for completing the building because of such work and the delay attending the same.
    “ That the forfeiture of ten per cent, in the contract price of the work for a failure to complete the same by the 25th .of December, as stipulated in the written, contract given in .evidence, is to bé held as the liquidated amount of damage for the failure-to c.omplete the work in that time, and the defendant is entitled to a deduction of the full amount thereof from the specified price of the work, unless the jury shall find that the failure to complete the same by said date proceeded wholly from the acts or default of the defendant, so that, independently of such acts or default, he would have so completed it within said time.
    “ Which instructions, and. each of them, the court refused to give ; to which refusal of the court the defendant excepts, and prays the court to sign and seal this his bill of exceptions; which is done accordingly, this 15th of April, 1847.
    W. Cranch,
    James S. Morsell, James Dunlop.”

      Defendant's Seventh Exception.

    “ If the jury shall find, from the evidence aforesaid, that the plaintiff contracted with the defendant, in writing, to build, complete, and deliver the said house to him on or before the 25th of December, 1844, and that the plaintiff failed so to do, and shall further find .that the time for said completion and delivery was not exténded beyond the said 25th of December, 1844, by the agreement of the said- plaintiff and defendant, or by the act of the defendant, then the plaintiff is not entitled to recover in this' action.
    “ Which the court refused to give; to which refusal the defendant prays leave to except, and that the court will sign and seal this his bill of exceptions; which is accordingly done, this 15th of April, 1847. W.. Cranch,
    James S. Morsell.”

      Defendant's Eighth Exception.

    “ If the jury find, from the evidence aforesaid, that the plaintiff contracted, by the. contract of the day of aforesaid, and the additional agreement thereto of the day as aforesaid, to build, complete, and deliver to the defendant the said house orí or before the 25th of December, 1844, and that the plaintiff failed so to do, then the defendant 'is entitled to claim ten per cent, as a deduction on the whole amount of the contract price from the claim of the plaintiff; provided the jury shall find, from the evidence, that the plaintiff could reasonably have so completed and delivered the said house on the 25th of December aforesaid, and notwithstanding the jury may further find that the building and completion thereof were delayed by the áct. of the defendant.
    “ Which instruction the court refused to give; to which refusal the defendant excepts, and this his bill of exceptions is signed, sealed, and ordered to be enrolled, this 15th of April, 1847. W. Cranch,
    James S. Morsell, James Dunlojp.”

      .Defendant's -Ninth Exception.

    “ If' the jury find, from the evidence, that the plaintiff contracted with the defendant to'build, complete, and deliver to him the. said house on the 25th of .December, 1844, and failed só to do, then the defendant is entitled to claim ten percent, on the amount of the whole price of the contract, as a deduction from the plaintiff’s claim. •.
    “ If the jury shall find, from the evidence, that the plaintiff contracted with the defendant, in writing, to build, complete, finish, and deliver to him the said house on or before the said 25th of December, 1844, and shall further find that the said plaintiff failed so to do, and that the time for'said completion and delivery was not extended by agreement of the parties beyond the said 25th of December, 1844, then the plaintiff is not entitled to recover in this action:
    “ Which instruction the court refused to give. Whereupon the defendant, by his counsel, excepted to .said refusal, and prayed the court here to sign and seal this his bill of. exceptions ; which is accordingly done, this 15th of April. 1847.
    W. Cranch,
    James S. Morsell, Jame3 Dunlop.”’
    Upon these exceptions, the case cáme up to this court.
    It was argued by Mr. May, for the plaintiff in error, and Mr. Bradley, for the defendant in error.

      Mr. May, for the plaintiff inr error,
    contended that the Circuit Court had erred.
    The principle asserted in the first, fourth, and fifth exceptions is understood to be, —:
    That in an action to recover the stipulated price on a special contract (to build a house, where the house, when built, has been accepted), evidence cannot be offered to show a.partial failure, to perform the same, according to its terms. Neither, can money paid to a stranger to complete the same or on account of said failure, nor any evidence of damages- suffered by reason of such failure, be offered to reduce the said price, even though the same be specially pleaded, or notice by way of set-off, with a particular aceoimt thereof, be filed in the case.

      Against this principle the following authorities will be relied on. Act of Assembly of Maryland of 1785, ch. 46, § 7; Evans’s Maryland Practice, 153; 2 Evans’s Harris, 37 ; 2 Greenleaf’s Evidence, § 136, and cases there cited; Basten v. Butter, 7 East, 482; Poulton v. Lattimore, 9 Barn. & Cress. 263; Runyan v. Nichols, 11 Johns. 547; Withers v. Greene, 9 Howard, 213.
    The second exception denies that it is the duty of the court to hear evidence to aid its exposition of a doubtful intention appealing in a written instrument, so as to give it effect according to the real intentions of the parties.
    Against this will be cited, i Greenleaf’s Evidence, § 277; Gray v. Harper, 1 Story, 574; Smith v. Bell, 6 Peters, 75; Bradley v. Steamboat Co., 13 Peters, 99.
    The fifth and eighth exceptions -declare that the sum of ten per cent., as agreed by the s.aid contract to be forfeit, in ease the .said house was not completed and delivered by the 25th of December, 1844, was intended by the parties as “ a penalty,” and not as “liquidated damages,” and could not be set off or discounted against the plaintiff’s claim.
    Against this will be cited, 2 Pothier on Obligations, by Evans, note No. 12, pp. 85-98; Davies v. Penton, 6 Barn. & Cress. 224; Lindsay v. Anesley, 6 Iredell, 189; Fletcher v. Dyche, 2 Term Rep. 32; Huband v. Grattan, 1 Alcock & Napier, 394; Crisdee v. Bolton, 3 Carr. & Payne, 240; Leighton v: Wales, 3 Meeson & Welsby, 545; Nobles v. Bates, 7 Cowen, 309; Dakin v. Williams, 17 Wendell, 454; Allen v. Brazier, 2 Bailey, (S. C.) 295; Brewster v. Edgarly, 13 N. Hamp. 277; Mead v. Wheeler, Ibid. 354.

      Mr. Bradley, for the defendant in error,
    referred to the following authorities: —
    On the first point, 12 Wheaton, 183,189, 193.
    Second point, 13 Peters, 99.
    Third point, 7 Wheaton, 13, 16,17, 18.
   Mr. Justice DANIEL

delivered the opinion of the court.

The defendant in error, in a form of proceeding practised in the court of Washington, instituted a suit in the nature of an action of assumpsit against the plaintiff, upon a contract-in writing for building a house. The contract between these parties, which is drawn out' in much minuteness of detail, it is not deemed necessary to set forth here in extenso in order to a correct understanding of the questions of law raised upon this record. Enough for that purpose will be shown in the following extracts from the agreement above mentioned.

After giving the dimensions of the house to be built, tlie contract proceéds with these stipulations concerning the work to be done, and the compensation to be paid therefor: —

“ House to be built of two stories, with attic chambers above, of first-rate materials throughout, including office and back buildings, and in the best and most modern style, of workmanship, and to be entirely finished and fit for occupation on or before the 15th of December, 1844.
“ For the brick-work throughout, the best hard-burned red brick are to be employed, with sharp river sand and best lime. For the flooring throughout, thé best quality narrow North Carolina yellow heart pme, tongued, grooved, and secret nailed. Roofs to be slated in the best manner. Spouting to be thoroughly arranged, in the least conspicuous manner, so as to carry off all the water that falls on the roofs of the main building,- office, and back buildings. Door and window frames and doors to be. of perfectly seasoned material, warranted not to shrink.”

After a long detail, having reference rather to an enumeration than' to the quality of the several things to be .done in completing the house and offices, the' agreement concludes in these words: — “ That the said William H. Van Burén is to pay to the said William .Digges for the house built and finished as above specified,- the sum of $ 4,600 in gold" or silver current money of the United- States, or its equivalent in bank-notes, in the following manner; viz. $ 1,000 on the 1st day of September ; $ 1000 on the 1st day of October.; $.1,000 on the 1st day of November; and $1,600 on the day-that the house is entirely finished and fit to occupy, provided that it shall not be later than the 25th day of December, 1844; he, the said William .Digges, to forfeit ten per cent on the whole amount, if the said house is not entirely completed and fit to occupy at the. time agreed upon, viz. December 25th, 1844.”

Subsequently, viz. on the 1st day of. September, 1844, the-above agreement was • altered by the parties in the following, particulars, vw “that in place of the attic story with rooms, as specified in .the above contract, William H. Digges is to build a third story, divided arid finished in all respects like the second story”; arid after reciting some directions with respect to divisions and arrangements in this third story, the hew agreement provides for the “ finishing of a garret; to be floored, plastered, and divided as agreed upon, with the necessary stairways, in the best manner and with the.same materials employed in the second story.”

For the work to be performed under this new agreement,' when it should be cotnpleted, the plaintiff in error was to' pay the additional sum of $ 525 ; but no stipulation appears therein as to the time within which this additional work was to be completed.

The plaintiff in error, the defendant below, pleaded the general issue (inon assumpsit), filed a bill of particulars amounting to the sum of $ 707, for moneys paid, expenses incurred, and damage sustained, by reason of the non-performance by the plaintiff of his agreement; and filed also with this bill of particulars a notice in writing, in which the amount of that bill was claimed in diminution of the plaintiff’s demand. Upon the issue joined, the jury rendered a verdict for the plaintiff, for the sum of $ 1,223.21, with interest from the 21st .day of August, 1845, till payment, and for this sum, with the costs of suit, the court gave judgment against the defendant below.

At the trial of this cause, there were nine separate prayers to the court, and nine bills of exceptions sealed to the rulings of the court upon the prayers thus presented to them. Some of these exceptions it will be unnecessary particularly to discuss,

’ as they are clearly embraced, if not within the terms, certainly within the meaning, - of others which were taken. We will therefore examine those exceptions only which.aré regarded as-propounding in themselves some distinct and separate legal principle. '

The first exception by the defendant below, the plaintiff in error-here, is as follows —

“ The plaintiff, in supportof the issue joined upon the plea of non assumpsit, produced and-proved written contracts between the parties, as follows (copied in pages 461 — 463), and further offered evidence tending to prove that .he had executed the work therein stipulated for, and had delivered it to the defendant, who received it without objection. And thereupon the defendant offered to prove, by competent witnesses, that, before receiving said work, and during, the progress thereof, he had objected to the sufficiency of various parts of the same as a compliance with -the contract, and had communicated said objections to the plaintiff, and that there were various omissions of work stipulated to be done, and various "portions of the work contracted for were done in a defective and inferior manner, and not as well as contracted for by the plaintiff, and that some of these-defects were not and. could not be discovered by the defendant, until after the defendant had entered into the possession and use of the house; and the defendant offered to prove, by way of set-off, and having filed a bilí of particulars of said alleged omissions and defects, and given, due notice thereof to the plaintiff, and of his purpose in reduction of. the contract price of the whole work sued for by the said plaintiff, the value of said omissions, and the difference in value between the actual work defectively executed, and that contracted for; to which evidence so offered, or any of it, the plaintiff objected, as inadmissible under the issue, and-the court, on the objection so taken, refused to admit any of said evidence for said purpose.”

The decision of the Circuit Court, rejecting the evidence described and tendered for the purposes set forth in this exception, cannot be sustained upon any sound legal principle.

We are aware of the rule laid down in the earlier English cases, which prescribed that in all instances wherein a party shall have been injured, either by a partial failure of consideration for the contract, or by the non-fulfilment of the contract, or by breach, of warranty, the person so injured could no.t in an action against him upon the contract defend himself by alleging and proving these, facts ; but could obtain redress only by a cross action against the party from whom the injury shall .have proceeded. .This doctrine of.the earlier, cases has been essentially modified by later decisions, and brought by them to the test of justice and convenience, which requires, that whenever compensation or an equivalent is claimed by á party in return for the performance of conditions for which such compensation or equivalent has been stipulated, the person so claiming is bound to show a fulfilment in good faith of those conditions; and the party against whom the claim shall be made shall be permitted to repel it by proof of an entire failure to perform, or of an imperfect or unfaithful performance; or by proof of injurious consequences resulting from either of these delinquencies; and shall not be driven exclusively to his cross action. Of this doctrine the following examples, amongst others to be. found, may be adduced from the-English courts.

Per Parke, Justice, in the case of Thornton v. Place, 1 Moody & Robinson, 219, it is said: “ When a party engages to do certain work on certain specified terms, and in a specified manner, but in fact does .not perform the work so as to correspond with the specification, he is riot of course entitled to recover the price agreed upon in the specification; nor can he recover according to the actual value of the work, as if there had been no special.contract. What the plaintiff is entitled to recover is the price agreed upon, subject to a.deduction, and the measure of that deduction is, the sum which it would take to alter the work so as to make it correspond with the specification.”

In Chapel v. Hicks, 2 Carrington & Marshman, 214, it is said: “ In an action on a special contract for work done under the contract, and for work and materials generally, the defendant may give iri evidence ■ that the work has been done improperly, and not agreeably to the contract; in that case, the plaintiff will only be entitled to recover the real;value of the Work done and materials supplied.”

In the case of Cutler v. Close, 5 Car. & Payne, 337, where a party had contracted to supply and erect a warm-air apparatus for a certain sum, it was ruled, in an action for the price (the defence to which was, that the apparatus did not answer), that, if the jury thought it was substantial in the main, though not quite so complete as it might be under the contract, and could be made good at a reasonable rate, the proper course would be to find a verdict for the plaintiff, deducting such sums as would enable the defendant to do what was requisite. And Tindal, C. J., in his instructions to the jury, uses this language: “ The plaintiffs say that they have performed their contract, and are entitled to be paid. On the contrary, the defendant says that the apparatus is not at all of the sort he contracted for; and therefore he is not liable to pay for it. The law on the subjeet, as it seems to me, lies in a narrow compass., If the stove in question is altogether incompetent, and unfit for the purpose, and either from that, or from the situation'in which it is placed, does not at all answer the end for which it was intended, then the defendant is not bound to pay. If it is perfect, and the fault lies in management at the chapel, then the plaintiffs will be entitled to recover the whole price. But there is another view of the case. The apparatus may be in the main substantial, but not quite so complete as it, might be according to the contract; and in that case, if it can be made good at a reasonable expense, the proper course will bej to give your verdict for the plaintiffs, deducting such sum as will enable the defendant to do that which is requisite to make it complete.”

But, as conclusive with this court upon this point, it may be ■ remarked, that it was carefully considered at the last term in the case of Withers v. Greene, 9 Howard, 213; the decisions applicable thereto from the courts both in England and the United States were then collated and- examined, and upon that examination the doctrine herein above propounded received the concurrence of all the judges. Again expressing our approbation of this doctrine, we conclude that the proof tendered, as declared in the first exception of the defendant below, should have been admitted, and that the Circuit’ Court erred in ruling, its exclusion from the jury.,

The second exception by the defendant states, that, in addition .to the evidence previously tendered by him, he offered proof tending to show the peculiar adaptation of the house contracted for, both in its design and situation, to the defendant’s personal and professional pursuits and convenience, and that the amount of ten per centum on the contract price stipulated to be forfeited if the house was not entirely, finished and ready for occupation, as therein provided, on the 25th of December, 1844, was intended by the parties--as and for liquidated damages, that would result and fairly belong to the said defendant by reason of said failure to finish the said house on the 25th of December, 1844; and that the court refused to hear the evidence thus tendered. In the refusal of the court to admit the evidence thus tendered we think they decided correctly. It would have been irregular in the court to go out of thé terms of the contract, and into the consideration of matters wholly extraneous, and with nothing upon the face of thewriting pointing to such matters as proper or necessary to. obtain its construction or meaning. The clause of the contract. providing for the forfeiture of ten per- centum on the amount of. the contract price, upon a failure to complete the work by a •given day, cannot properly be regarded as an agreement or settlement of liquidated damages; The terrp. forfeiture imports • a penalty ;■ it has no. necessary or natural connection with the measure or degree of injury which may result from a-breach of contract, or from an imperfect performance. It implies ati absolute infliction, regardless of the nature and extent of the causes by which it is superinduced. Unless, therefore, it shall have been expressly adopted and declared by the "parties to be a measure of injury or compensation, it is never taken as such by courts of justice, -who-leave it to be enforced where this can be done in its real character, viz. that of a penalty. In a defence like-that attempted by the defendant in the Circuit Court, upon the essential justice and fairness of .the acts of the parties, a positive immutable penalty could hardly be applied as a fair test of their' merits.

In the third exception by. the defendant, it is" stated'that the plaintiff, having given evidence to show that the defendant, whilst the house in question was being built, made a contract, for an alteration in the style and finish of the plastering of the house, with a third person, and not with the plaintiff; and thereby the execution of the work on the said building was delayed beyond the 25th of December, 1844; the defendant . offered evidence tending to prove that the,said plastering and the style and finish thereof were usual and proper and necessary to the completion of the said house; and further offered to prove, that, at the time of the execution of the said plastering, the defendant in the presence of the plaintiff insisted on' and required him to execute the sanie as a part of his contract; and that he refused so to do, and that to the admissibil-. ity of this evidence, objection "being made, it was excluded •from' the jury by the court. In this decision the court were certainly correct.- The defendant could- have-no right to insist upon the performance of plastering, or of any other description of work, unless it came within-t-he provisions of the contract; the simple fact that the work - demanded, was suitable to the' style of the defendant’s house, could give him no right to demand its execution, unless the plaintiff had contracted-for its. . performance. It was incumbent, therefore, on the defendant, to prove by legal evidence that the work demanded by him was within the provisions of the contract; but instead of doing this, he insisted upon showing merely that he, the defendant, had determined this work to be proper and within the,pro-, visions of the contract, and that the plaintiff’s non-concurrence in this determination, and consequent refusal to do what the defendant required, were to be received as proof of a failure on the part of the plaintiff to perform his contract ;> an 1 as forming a just ground with the defendant for his resistance, to the' action. It would' indeed have been -strange, if the court could have tolerated such an irregularity as this; by which the defendant would have been permitted to become a witness in his own behalf.

The fourth and fifth exceptions on the part of the defendant below, relating merely to the admissibility ■ of testimony to show a failure to perform, or an incomplete performance, on the part of the plaintiff, are embraced within the first exception already considered, and the rulings of the court as to these two last instances being in contravention of our opinion as declared upon the first exception, are pronounced by this court to be erroneous.

In the- sixth exception of the defendant, two subjects essentially distinct in character are blended. As to the first, it is stated that the plaintiff, having further given evidence tending to show that, after the plastering of the house was begun, the' defendant entered into a contract with the plasterer to make cornices and centre-pieces for the parlors and passages; that a delaji in the work, for- a week was occasioned by the negotiation leading to the said agreement; and a further delay of two weeks by the additional plastering, and part of the same being frozen, insomuch that the plasterer could not finish the work until some -days after the. 25 th of .December, 1844, and much of the' carpenters’ wqrk ' and- the:--painters’ was thereby postponed .and delayed until after ihe said day; and the said defendant theff'gáve evidence to .show that the plaintiff knew- of the said agreement for the- said additional plastering, and did .not object thereto. ■ And thereupon the- defendant prayed the court-to instruct1’the jury7, that-if they shall find that.any delay was caused in completing the work in consequence of the ex* tra plastering in the parlors and passage, done under the dis'tinc-t contract therefor given in evidence, and they shall further find that said extra plastering was so done with the full knowledge* and sanction of the plaintiff, and without any understand-, ing between him and the defendant at the time, that in consequence thereof a further time should be allowed for completing the building, then the plaintiff is not entitled to any further time for completing the building because of such work, and the delay attending the same.

The second subject embraced in this exception is the.forfeiture of ten per centum upon the contract price of the work, >v.hich the court was asked to declare was the amount of liquidated damages, the whole amount of which on the price of the work the defendant was authorized to claim for a failure to complete the work by the- 25th of December, 1844, unless the jury should find that the failure to complete. the work proceeded wholly from the acts or default of the defendant. The refusal by the Circuit Court of both the instructions appearing upon this exception is entirely approved.

It is difficult to conceive, upon what ground the defendant could be permitted to interpose an obstruction to the fulfilment of the contract, and then to convert that very obstruction info a merit on his own part, or into the- foundation of a claim against the party-whom he had already subjected to the inevitable consequences of the obstruction so interposed; an inability to comply with his engagement, ahd a postponement of the fruits of a compliance therewith, if that had been permitted. Mere acquiescence in this irregularity by the plaintiff should not subject him to farther mischief. With respect to the second subject embraced in this exception, vik. the forfeiture of ten per centum claimed by the defendant, we deem it unnecessary to add to what has been already said on that subject. We will here remark, once for all, with respect.to this penalty, that, as it constitutes the only ground for the. eighth and ninth exceptions taken by the defendant below, those exceptions must be regarded as expressly overruled.

" By the' seventh exception of the defendant below, it appears that the court were asked to propound as the law, that if, from the evidence, it should appear that the plaintiff contracted with ■the defendant in Writing, to build, complete, and deliver the said house, to him on or before the 25th day of December, 1844, and that the plaintiff failed to do so; .and the jury shall find that the time for said completion and delivery was-not extended beyond the said 25th of December, 1844, by the agreement of the said plaintiff and defendant, or by the act of the defendant, then the plaintiff is not entitled to recover in this action, which instruction the court refused to give.

The ruling of the court, as set forth in this exception, though not reconcilable 'with their own decision on the first prayer presented to them by the defendant, is in accordance with the opinion we have expressed in reference to the questions raised by that prayer, and also with the doctrine ruled by this and in other tribunals upon those questions, as in treating of that first prayer we have already shown. It places the parties upon the true ground of contestation between them, viz. the truth, the extent, and manner of performance on the one hand; the degree of injury, from omission, neglect, or imperfection of performance on the other. The ruling of the Circuit Court, therefore, upon this exception, is' entirely approved; but as that court has erred in its decision in reference to the prayers in the first, ' fourth, and fifth exceptions of the defendant, its decision as to those prayers is hereby reversed, with costs, and this cause is remanded to the Circuit Court, with orders for.a venire facias for a new trial in conformity with the principles expressed in this opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and .was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.


author: Mr. Justice WOODBURY

text:
    Frederic D. Conrad, Plaintiff in error, v. David Griffey.
    Where a witness was- examined for the plaintiff, and the defendant offered in evidence declarations which he had made of a contradictory character, and then the plaintiff offered' to give in evidence others, affirmatory of the first, these last affirmatory declarations were not admissible, being • made at a time posterior to that at which he. made the contradictory declarations given in evidence by the defendant.
    Where the writ, pleadings, and contract spoke only of Frederic D. Conrad, and the judgment went against ■ Daniel. Frederic Conrad, the defendant, it was too late after verdict and judgment to assign the'yariation as error.
    This case was fought; up,-by writ of error, from the Circuit Court of the United States .for- Louisiana.

      There was only one point of evidence involved. ■ Three exceptions were taken during the progress of the trial by the plaintiff below, but, as the verdict was in his favor, they were not argued here.
    On the 26th of March, Conrad, being a'Louisiana planter, made a contract with Griffey of Cincinnati, by which Griffey, engaged to construct and set up a steam-engine and sugar-mill boilers, &c., upon Conrad’s plantation, for $ 6,650, payable at different times. Griffey stipulated to have the privilege of appointing the engineer to run the engine. during the rolling of the first crop.
    On the 23d of. December, 1846, Griffey brought his action, by way of petition, against Conrad, claiming a balance of $ 3,781.58.
    On the 22d of January, 1847, Conrad filed his answer, admitting the work, but denying that it was properly performed according to contract, and alleging that he had sustained a loss/of $ 10,000, which he claimed in reconvention.
    On the -first trial, -February 23,1848, the jury found a verdict for plaintiff for $ 3,000, without interest.
    The court granted a new trial.
    On the 20th of February, 1849, the cause came on again for trial, when the jury found a verdict for plaintiff for $'3,781.58, with interest.
    Amongst other testimony taken on the part of the plaintiff, under a commission, was that of Leonard M. Nutz, the engineer sent by Griffey to erect and work the machine. His answers to various interrogatories may be condensed as follows : —
    The quality and strength of the engine were well proportioned and strong. The quality of the machinery was good. The general style and character of the whole workmanship, mill and engine, was good. It compared with others, very well.
    By housings are meant the frame which holds or supports the rollers.
    I did notice particularly the housings of Mr. Conrad’s mill and engine. They were sufficiently strong; théy were well fitted and suited for the purposes they were intended, to be used for.
    ' I dó not know of any defects.
    In answer to 14th interrogatory says', 1 was at the mill and engine, after it was started, in the capacity and employment of engineer. I was there on the 30th day of October, 1845, acting in that capacity.
    In answer to 15th interrogatory says, On the 30th of October we put in a spring beam, underneath the housing, and took out the ones that were there, on account of their being made of green timber and had sprung; there was nothing broke at that time ; some time in November one of the housings broke, which was caused by the. carelessness of one of the negroes letting a piece of iron pass in the rollers, in the carrier, which was sufficient to break any engine; I was asleep along side of the engine, and was awakened by the surge, and took out the piece of iron; the housing did not part, it only cracked, and the mill was nc.t stopped at all on account thereof; but when the tie-bolt was put in, we stopped about 2£ hours.
    In answer to 17th interrogatory says, The head engineer had an assistant furnished by the planter; the head engineer • watches 18 hours, the assistant 6 hours, and they two attend to the engine.
    In answer to 18th interrogatory says, I had an assistant, which was one of Mr. Conrad’s slaves, named Tilman, furnished by Mr. Conrad.
    In answer to 19th interrogatory says, The accident occurred during the watch of my assistant.
    In answer to 20th interrogatory says, There was no time lost, except the two hours and a half which I was putting in the tie-bolt.
    • In answer to 21st interrogatory says, I made two new brace bolts for the housings, and continued the crop without any further detention.
    In answer to 22d interrogatory says, I was present du-ing the whole time the engine was employed taking off the crop that year, and no other stoppage of the engine and mill occurred.
    This deposition was taken on the 1st of April, 1847.
    The defendant then offered the depositions of Sosthene Al-lain, W. Hun^toek, and William Neff. It may here be mentioned that the plaintiff objected to reading what related to Nutz’s statements, on the ground that the defendant, by omitting to cross-examine him,, and to inquire into such conversations, had not laid the foundation for the admission of such statements. But the court decided to admit them, and allowed them to» be read. To this decision the plaintiff’s counsel excepted. . But, as before remarked, this exception was not argued.
    The depositions were as follows.
    Mr. Allain: —
    Interrogatory 22d. Bid you see and converse with the white engineer (who ran Mr. Conrad’s engine), just-after-the last accident to the mill", if yes, do you recollect his name; what reason'did he assign.for the housing of the mill being fractured; , did you hear any thing about a piece of iron or woo'd running into the rollers; if yea, what and from whom ?
    To 22d interrogatory witness answers : That he did converse with the engineer, whose name' he believes was Nutz, immediately after the breaking of the housing; and that 'the reason assigned by said;engineer, Nutz, for the breaking of the hou3-' ing was, that the housings were entirely too weak ; that witness did not hear any thing said by any one about a. piece of iron or wood having run-into the-rollers.
    Mr. Hunstock: —
    3d. .Did the plaintiff examine the sugar-mill and engine of defendant at that time, and what did he say touching the accidents to the machinery, and their probable cause ?
    To the 3d. interrogatory the witness answers : That the plaintiff did examine the sugar-mill and engine of defendant at that time, and then he, the plaintiff, said, that Nutz, the engineer, whom he, the plaintiff, had sent to run the engine of ' defendant, had told him that the breaking of the housings of the mill was owing to the chawing of the keys that keyed up the brace bolts ; but he, the plaintiff, had afterwards found out-that said Nutz was an incompetent and lazy engineer, and that' he was inclined to believe that it was oNving to 'Nutz’s neglect the ,accident happened, and that he, the plaintiff,'was so dissatisfied with Nutz, that soon after his return to Cincinnati he, had dismissed him from his sho^.
    10th. Did you see Nutz soon aflur, and how soon after, the' breaking of the housings ; did he express any opinion as to the cause, and what did he say on the subject ?
    To the 10th interrogatory the witness answers v That he saw Nutz soon after the accident occurred, at his, witness’s, sugar-house, but cannot say precisely how long after, but it was not longer than one week after the breaking of the housing, that Nutz came to the sugar-house of witness, by consent of defendant, to assist in taking down some part of his, witness’s, machinery, which occupied him about one or. two hours ; during which time he had a conversation with Nutz about the accident which had happened to the housing of defendant’s mill; that he-asked Nutz to what cause the breaking of said housing was owing; and Nutz answered, he could not tell the’ cause of its breaking, as there was moderate feed on the cane-carrier at the time the accident happened, and no strain on the mill.
    William Neff: —
    The' 22d interrogatory was the same as that put to Mr. Allen.
    To the 22d- interrogatory the witness answers: Tha., he heard that Nutz said, that he could not tell the reason why the housing broke; that there was a very light feed of cane on at the time, and no strain on the mill. This was said by Nutz immediately after the fracture was discovered, and he said, at' the same time, that nothing had gone through the rollers that could have strained the mill..
    Interrogatory 32d; Was there any unusual strain on the mill' at the time the housing gave way; if yes, state what it was; .did any iron or wood, or any foreign substance, go into the rollers to strain them ; if yes, what was it; what did the engineer, Mr.’Nutz, say about it at the time ?
    To 32d interrogatory witness answers : That he has no knowledge that there was any unusual strain on the mill when the housing broke, and that he does not think there was. Witness has no knowledge that any iron or wo.od, or any other substance than sugar-cane, went Into the rollers to strain them, nor does he believe that any foreign substance did get into them to strain them. Witness heard Mr. Nutz express great surprise at the time at the accident, saying that he could not account for it, as there was a lighttfeed of cane at the moment, and nothing had gone into the rollers to strain them. In talking on the subject of the accident, witness heard Mr. Nutz say, that the housings were entirely tpo weak for the power of the engine, besides the mill.
    These depositions having been given in evidence, the plaintiff offered, as rebutting evidence, and to support the credit of Nutz, the two following pieces of testimony.
    1st. The following letter from Nutz: —.
    “ New Albcmy, April 3,1846.
    “ Mr. D. Griffey : — Dear Sir: My sister handed me a few lines addressed to her, requesting me to send my affidavit respecting F. D. Conrad.- I have no knowledge of the information you wish, unless it be the accident of the breaking of one of the housings' of his sugar-mill, and all that I can say upon the subject is, that the night when, in my candid opinion, the accident happened, Iswas awakened by the surging of the engine ; it completely stopped under a good head of steam. I then ordered the negro man who was running the engine at the time, to examine well in the cane shute, supposing something harder than cane to have passed in the carrier, and there was found a piece of iron that broke off of one of the cane carts, wedged in front-of rolls, too large to pass ; in the shape-was thus, about 16 inches long, 1\ inches wide, where it came in contact with the other, with the rolls; and from that time until I discovered the break, which was the next day, I found it difficult to keep that end of rolls tight; I then forged new tie-bolts with keys on the outer end.s, to keep them firmly keyed, and by so doing we were enabled to take off the crop without losing but three hours by the break ; for whilst I was forging the bolts, the engine was still running.
    “ Previous to the breaking of the housing, we had another small stoppage, but no accident; the wall was very green, and likely to give way; under the spur-wheel stand bed-plates, which rendered it firm and secure during the season, and will always.remain so under any reasonable usage; this stoppage was the 30th of October, 1845. 1
    “ If the overseer, Mr. Collins, had let Mr. D. Edwards commence his work when he wanted to, I do candidly think the walls would have been more firm/ and the léast fear would have-been overcome; there was no accident, but the bolts were placed to render the work more secure upon the foundation; and as for the machinery in general, it was a good strong piece of work, hard to be surpassed.
    “ Leonard N. Nutz.
    “ To David Griffey, State of Indiana, Floyd County, ss.

    “ On the 3d_day of April, A. D. 1846, before the subscriber, justice of peace in and for the said county, and authorized by law to administer oaths, personally appeared Leonard N. Nutz, and made oath that the above is a true statement of F. D. Conrad’s sugar-mill, and engine. ■

      “ Leonard N. Nutz.
    “ Given under my hand and seal, this 3d day of April, 1846.
    “ Samuel G. Wilson, J. P.”
    2d. The testimony of one Edwards, a witness, sworn in open court, to the effect that, in the spring of 1847, the said Nutz had said, in the presence of said Edwards, that the breaking of the housings or frame of the sugar-mill had been occasioned by a piece of iron getting betweén the rollers.
    To the introduction of this rebutting testimony the defendant objected, but the court directed it to be admitted; whereupon the defendant took the following bill of exceptions : —.
    “ Be it known, that on the.trial of this cause before the jury, the plaintiff having offered the. deposition of " Leonard N. Nutz in evidence, and the defendant having offered the depositions of Sosthene Allain, W. Hunstoek, and William Neff, all on file, the said plaintiff offered as rebutting evidence, and to support the credit of L. N. Nutz, —
    “ 1st. A letter of L. N. Nutz,' of date New Albany, the. M
      of April, 1846, with an affidavit annexed; and 2d. The testimony of one Edwards, a witness, sworn in open court, to the effect that, in the spring of 1847, the said Nutz had said, in the presence of said Edwards, that the breaking of the housings or frame of the sugar-mill put up by plaintiff for defendant, had been occasioned by a piece of iron getting between the rollers. To both of which, to wit, the said letter and affidavit, and the said statement in presence of said Edwards, the counsel for defendant objected, that, at the time of the making of said affidavit and said verbal statements, the said Nutz was not an agent of defendant, or employed by him; that said' affidavit was not made under commission, nor with any notice or opportunity on the part of defendant to cross-examine the said witness ; that his said verbal statement was not made in the presence of. defendant; and, lastly, that the evidence of the defendant above referred to was not an attack upon the credit of said Nutz, but was competent testimony, admissible to prove the facts attested, and did not justify the admission of statements, either verbal or written, at other times and places made by said Nutz in order to support his credit; but all said objections were overruled, and the said letter and- affidavit were received, and the testimony of said Edwards, as above stated, was also received and laid before the jury; to all of which the counsel for the defendant tender this their bill of exceptions, and,pray that the answers to the interrogatories of L. N. Nutz, W. Hunstock, William Neff, and Sosthene Allain be deemed and taken "as a part of this bill of exceptions, and be copied and certified accordingly.
    “ Theo. H. Me Caleb, U. S. Judge.”

    Upon this exception, the case was argued in this court by Mr. Fendall, for the plaintiff in error, and Mr. Gillet, for die' defendant in error.
    The counsel for the plaintiff in error made several points, of which it is only necessary to notice the following.
    I. Ulegal evidcnce.
    This ground is disclosed in the defendant’s bill of exceptions, and in the letter and affidavit which it refers to.
    Griffey was bound by his contract to “ put up,” as well as to .construct, the steam-engine and sugar-mill; and, in the contract, he reserved to himself the privilege of appointing the engineer to run the engine, during the rolling of the first crop. Leonard N. Nutz was the “ engineer appointed to run the engine for the plaintiff.” He was thus a very important witness for the plaintiff. His deposition tends to prove, that the steam-engine, sugar-mill, and apparatus supplied by the plaintiff below were, in every respect, conformable to the contract between the parties; that the plaintiff had, on his part, fully complied with his contract, and that he was entitled to the price which he claimed under the contract, and for extra work. In short, his deposition tended to prove the plaintiff’s whole case. Other witnesses deposed to the weakness and insufficiency of the machinery ; and their testimony, on many points, is in direct conflict with that of Nutz.
    One of these points was especially important. ■ Soon after the sugar-mill was set up, the housings, or frame on which the ■ tollers rest, which are the foundation on which the mill works, broke; and could not be fully repaired during the entire season., In consequence of this very serious injury, the grinding was greatly delayed, and when it recommenced, the work was done much less perfectly. It became a most material subject of im , quiry whether this breaking arose from the weakness of the housings, or from some cause for which the manufacturer was not liable. Nutz, in his deposition, swore that the breaking was caused by a piece of iron passing in the rollers in the carrier. Three other witnesses present, or near, at the time when the break was discovered, swore to the contrary of this. In order to induce the jury to give greater credit to Nutz’s testimony- than to that of the defendant’s witness, the plaintiff offered to show that at other times, and to other persons, Nutz had given the same account of the breaking as that contained in .his deposition. The objections set out in defendant’s bill of exceptions to the admissibility of Nutz’s letter of the 3d of April, 1846, and his statement in the presence of-Edwards, are relied on in support of the writ qf error. In some cases the credit of a witness may be supported by proof of his-statements, but this is not a case within the rule. Whatever uncertainty or fluctuation may be discerned among the older authorities, the doctrine which is now well established limits the abduction of confirmatory statements to cases in which the motive of the witness is assailed or brought under suspicion. In such cases, and in such only, evidence is admitted of his having, made similar statements when the imputed motive did not exist. This principle is clearly to be collected from the rulé, as enunciated in different forms by the most approved writers. See Sir W. D. Evans, 2 Pothier on Obligations, 289; 1 Greenl. Ev. § 469; 1 Starkie’s Ev. 148, 149 (Bost. 1826}: 3 Starkie’s Ev. 1758; 1 Phil. Ev. 308 (ed. N. Y.' 1839); 2 Phil. Ev. 445, 446 (ed. N. Y. 1849, from 9th Lond. ed.); Robb v. Hackley, 23 Wend. 50; 24 Wend. 465; 10 Peters, 438, 439; 1 McLean, 211, 212; 8 Wheat. 332; 24 Wend. 425, 426.
    In Parker’s case, 3 Doug. 242, the evidence of a confirm* atory statement was rejected, Buffer, J. holding “ that it was clearly inadmissible, not Being upon oath.” This objection being sufficient for that case, it was unnecessary for the court to go any further. But the principle is the same, whether the confirmatory statement b'e sworn or unsworn. In this case, the statement made in the presence of Edwards was not sworn to; and that may have been the very statement that swayed the jury. “ It is well settled that, if improper evidence' be given, although it-may be cumulative only,-the judgment must be reversed ; for we cannot say what effect such evidence may have had on the .minds of the jury.” Osgood v. Manhattan Company, 3 Cowen, 621; cit. Marquand v. Webb, 16 Johns. 89. But whether the confirmatory statement was or was not sworn to, the true questions are, in either alternative, Was the statement made before the imputed or suspected motive existed ? (2 Evans’s Pothier, 289 1 Phil. Ev. 308.) Was it made before “ the relation ” of the witness “ to the party or to the cause ” existed? (1 Greenl. Ev.- § 469.) Was it made “at a time •when the witness labored under no interest or influence to misrepresent the fact”? (1 Starkie’s Ev. 149; 3 Ibid. 1-758.)
    Neither Nutz’s letter and affidavit, nor his statement in the presence of Edwards, can stand any' of these tests. His credit may have been impeached, indirectly, by disproving facts sworn by him; and directly, by proof that his own statements, made when the breaking occurred, were in direct conflict with the account which he gave in his deposition. But his own position on the 3d of April, 1846, when he writ the letter, and in the spring of 1847, when he made the statement in the presence of Edwards, was the same as on the 1st of April, 1847, when he made the deposition. And in regard to his statement in the presence of Edwards, the admission of it in evidence is liable to the further objection, that it was not proved to have been before he gave his deposition. Edwards says that it was made “ in-thc- spring of 1847 ” ; but whether before or after the 1st of April in that year he does not say. The “ relation to the party and to the cause” which tended to bias the mind of Nutz existed in the fall of 1845, and resulted from his being employed by the plaintiff to set up and work the mill. That bias was at least as strong in April, 1846, the date of the letter, as it was in April, 1847, the date of the deposition ; and, consequently, his statements at the former or any intermediate date could not legally be adduced in support of his deposition.
    IV. Repugnancy and uncertainty in the judgment.
    1. - The judgment is against a person not a party to the suit.
    2. The judgment is uncertain as to the identity of the defendant.

      The- suit is brought against “ Frederick D. Conrad ”; in all the-pleadings, entries, captions, &c., he.is so'called, except-when he is called “ F. D. Conrad ”; the contract purports to have been made between the plaintiff and “ Frederick Daniel Conrad.” The judgment is againstDaniel Frederick Conrad.” The middle name forms no part of thé Christian name of.a party. ’ Keene v. Meade, 3 Peters, 7; Games v. Stiles, 14 Peters, 327. The suit, then, is against Frederick Conrad, and the judgment is against Daniel Conrad.

      Mr. Gillet,. for the defendant in error,
    made the following points: —
    1. The defendant assailed the veracity of Nutz, by proving that he had given to defendant’s witnesses an account of the breaking the housings of the mill which essentially differed from his testimony in the.cause, taken before a commissioner. T Greenl. Ev. § 462; 1 Phil. Ev. 293; Roscoe’s Criminal Ev. 181,182; 3 Starkie’s Ev. 1753; 1 Part of Cowen & Hill’s notes on Phil. Ev. 772, and cases there cited.
    2. The plaintiff had a right to fortify Nutz’s testimony, .after it was assailed, by proving that he had formerly given the same account of the transaction. English Authorities: — Gilbert’s Ev. 135; Finney’s case, McNally’s Ev. 378; McCann’s case, Ibid. 381; Leary’s case, Ibid. 379; Buller’s Nisi Prius, 294; Hawkins’s Pleas of the Crown, b. 2, c. 46, s. 48; Roscoe’s Crim. Ev. 1757,1758; Sir J. Friend’s case, 4 State Trials, 37; S. C., 13 Howell’s State Trials, 32; Harrison’s case, 2 Howell’s State Trials, 861; Lutterel v. Regnell, 1 Mod. 282. American Authorities:. — Quay v. Eagle Fire Ins. Co., by Van Ness, J., 2 City Hall Recorder, 1, 21.; Connecticut v. DeWolf, 8 Conn. 93; The People v. Vane, 12 Wend. 78, 79; Johnson v. Patterson, 2 Hawks, 183; State v. Twitty, 2 Hawks, 248, 441, 448; Coffin v. Anderson, 4 Blackf. 395; Beauchamp v. The State, 6 Blackf. 300; The Commonwealth v. Bosworth, 22 Pick. 397; Cook v. Curtis, 6 Har. & Johns. 86 — 93; Packer v. Gonsalus, 1 Serg. & Rawle, 536; Henderson v. Jones, 10 Serg. & Rawle, 322; Wright v. Deklyne, 1 Pet. 203; Claiborn v. Parish, 2 Wash. Va. 148.
    3. The defendant below had no right to give in evidence what Nutz had told other persons concerning the'sugar-mill, because he (the defendant) had not inquired of him (Nutz) whether he had" had any such conversations with such persons, thereby laying a foundation for such evidence. Roscoe, Cr. Ev. 182, 184; Evertson v. Carpenter, 17 Wend. 419; Tucker v. Welch, 17 Mass. 160; Ware v. Ware, 8 Greenleaf, 42; The Queen’s Case, 2 Brod. & Bing. 301; 1 Greenleaf’s Ev. § 462; 1 Phil. Ev. 593, 1 Cowen & Hill’s Notes, 773.

      4. If evidence was given by the plaintiff to. repel such illegal evidence on the part of the defendant, it merely counteracted the error committed by him, and is no ground of error.
   Mr. Justice WOODBURY

delivered the opinion of the court."

In this case, there had been four bills of exception filed in the court below,, but only one of them by Conrad, the plaintiff in error. We shall, therefore, proceed to dispose of that alone.

It objected to the receipt in evidence of declarations, made by a witness for the original' plaintiff, under the following circumstances'.

Griffey brought a suit-against Conrad for building a mill for him to grind sugar-cane; and, among other defences set up by the "latter, was that of weakness and .insufficiency in the work and materials furnished. To repel this defence Griffey put in the deposition of Nutz, who was' an engineer. and aided and superintended the erection of the mill, and who testified to the goodness of both the work and materials.

With a view to contradict and impehch him in what he thus swore, Conrad proved that this witness, soon after the completion of the .mill, had given a different account, and especially of the cause of the- breaking of some of the . machinery ; considering it to have happened from the badness of the materials.

Griffey then offered to prove that the witness had since' given the same statement, as to the goodness of the work and materials, which was now in his deposition. But Conrad ' objected to the admissibility of such evidence ; and the court below overruled.his exception and allowed the evidence to go to the jury.

After due consideration, our opinion is, that this ruling was erroneous.

The practice on this subject seems to differ much in different States, and has occasionally changed in the same State. It is sometimes modified, also, as applied to different classes of cases and witnesses.

Thus, in some places, ás in New York, such evidence is,- as a general rule, now treated as inadmissible. Robertson v. Caw, 3 Barbour, 410; Robb v. Hackley, 23 Wend. 50; Dudley v. Bolles, 24 Wend. 465. So in Vermont. Gibbs v. Linsley, 13 Verm. 208. Though at one time in Npw York it was allowed, and particularly in certain criminal cases.. The People v. Vane, 12 Wend. 78; Jackson v. Etz, 5 Cowen, 320.

But in some other States this kind . of evidence has been deemed competent. As in Massachusetts, in a eriminal.ca.se, where an accomplice was a witness. Commonwealth v. Bosworth, 22 Pick. 397. And in Maryland, if the statements were prior in point of time. Cook v. Curtis, 6 Har. & Johns. 93.

In Pennsylvania, also, such statements have been admitted, without reference to their priority. As in Parker v. Gonsalus, 1 Serg. & Rawle, 536; Henderson v. Jones, 10 Ib. 322. So in Indiana. Coffin v. Anderson, 4 Blackf. 398, 399. And in some other States, which need not be repeated, a similar .practice appears to prevail.

But in other places,, as in England, such evidence, though at one time considered competent, and' especially in criminal cases, (Gilb. Ev. 135; McNally’s Ev. 378, 381; Bull. N. P. 294; Lutterrell v. Reynell, 1 Mod. 282), is now even there excluded. See Parker’s case, 3 Doug. 242; 10 Peters, 440; 1 Phil. Ev. 2 and 3, and 230, note; 1 Starkie’s Ev. 187 and note; 23 Wend. 55; 2 Phil. Ev. 445; Brazier’s Case, 1 East, P. C. 444; 2 Starkie, N. P. 242.

While the rule was otherwise in England, • some of the State decisions already cited were expressly grounded on the rule there (see 10 Serg. & Rawle, 332), and others on cases adopting that rule (4 Blackf. 398).

But since the rule became changed in England, or. from being doubtful became w.ell. established against the introduction of such testimony, the practice in some States, as in New York artd Vermont, has been settled so as to correspond ; and in this court, also, it has taken the same direction.

In this court it has been held that such evidence is not admissible, if-the statements were made subsequent to the contradictions proved on the other side. Ellicott v. Pearl, 10 Peters, 412, 438.

That was a case from Kentucky. Yet the decision does not appear to have been made to rest on the peculiar laws or practice of that State; but on general principles, and the course pursued of late years in England.

In our judicial system, perhaps the decision should not rest on any local rule, though a different principle seems involved ip McNiel v. Holbrook, 12 Peters, 85, where the rule of evidence was changed by a State statute. Clark v. Sohier, 1 Woodb. & Min. 368.

But if it should so rest, we are not aware that in Louisiana, where this case was tried, the practice differs from what appears to be required by sound general principles, independent of any local peculiarities.

So far as regards principle, one proper test of the admissibility of such statements is, that they must be made at least under circumstances when no moral influence existed to color or misrepresent them. 1 Greenl. Ev. § 469; 2 Pothier on Oblig. 289; 1 Stark. Ev. 148: 1 Phil. Ev. 308.

But when they are made subsequent to other statements of a different character, as here, it is possible, if not probable, that the inducement to make them is for the very purpose of counteracting those first uttered. 10 Peters, 440.

This impairs their force and credibility, when, if made before the others, they might tend to sustain the subsequent evidence corresponding with them. 23 Wend. 52; 2 Phil. Ev. 446; 1 Greenl. Ev. § 469.

When made in either way, they are admissible only to sustain the credit of the witness impugned, and not as per se proof of the facts stated, and hence if made under oath, as here, but not in legal form as a deposition between these parties, they are none the more admissible, except, if prior in date, they might help to sustain the witness’ credit. 10 Peters, 412; King v. Eriswell, 3 D. & E. 721.

In this, case, then, not having been made prior in time, they do not-appear on principle or precedent to be competent.

Another question has been presented, arising on the record, which is not included in any of the exceptions.

It is that the judgment runs against “ Daniel Frederick Conrad,” when the writ, pleadings, and contract speak only of “ Frederick D. Conrad.” But the judgment is for the plaintiff against “Daniel Frederick Conrad, the defendant.” And the name prefixed jas defendant in the judgment may well be rejected as surplusage, after verdict and judgment, when the true name had been well described in the writ and pleadings.

The statute of jeofails clearly cures any such defect, where, as here, it can well be understood who was meant by “ the defendant.” 1 Stat. at Large, 91; 1 Bac. Abr., Amendment, B; 1 Peters, 23.

Let the judgment below, however, be on the first ground reversed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, .reversed, with costs, and that this cause be, and the same is hereby, remanded'to the said Circuit Court, with directions to award a venire facias de novo.