Fresh v. Gilson

delivered .the opinion of the Court.

This case arjses un,der the attachment law pf the state of Maryland, passed in 1795; and comes before this Court upon a writ of .error to the-Circuit Court of the District of Columbia, for Washington county; within which the law of Maryland above mentioned-is in force. The proceedings instituted in this case, although commencing by an attachment, and upon what is termed- a- short note in lieu of-a formal declaration, assume, nevertheless, the essential character, and in some respects the usual forms of, the action of-assumpsit, and must be governed by the

Upon the trial, exceptions were taken m five separate instances to the rulings of the Circuit Court, and in each of them. the ex, ception sealed by the judges is made a part of the record. To test the accuracy both of the decisions thus pronounced, and of the objections alleged against them, it will be necessary, to advert to the facts adduced in proof.

It appears that on the 23d of August, 1832, the defendants in error entered into a covenant with the Chesapeake and Ohio Canal Company, for certain rates and prices stipulated in a covenant sealed between the defendant and the company by their president, and in a specification appended to the said covenant, to construct in a substantial and workmanlike manner, culvert No. 116, on the 150th section of the Chesapeake and Ohio Canal-;' and to prosecute the work upon the said culvert .without intermission, with such force as should in the opinion of; the resident engineer secure its completion by the first day of August, 1833:

On the third' day of November, 1832, a covenant was entered into between the plaintiff in error and the defendants, -or rather with Riah Gilson, one of the defendants, styling himself superintendent for- Gilson and Company, by which the construction of the culvert No.. 116 was let to the plaintiff, at the contract prices to be paid by the company for the work; with the exception that Fresh should pay to the defendants, from whom he took this contract, the sum of one hundred dollars,- which sum appears to have been a profit reserved to themselves by the first contractors upon the transfer of their undertaking. In this .second covenant, the plaintiff in error bound himself “ to be urgent- in the performance of the work, so that it might progress in accordance with the specification and directions of the engineers.” And' further, that in the event of neglect or failure on his part;-the defendants'should have authority to declare the work abandoned, to assume the direction, and to complete it at the plaintiff^ ex-. pense. - Having thus obtained a contract under the defendants, the plaintiff, on the second day of May, 1833, made an agreement with Elijah Barret for building of this culvert, by the latter;

The defendants, to rebut the plaintiff’s demand, offered the account, exhibit (C), commencing December 5th,. 1832, and ter'minating the 21st of December, 1833, amounting to the sum of one thousand three hundred and sixty-nine dollars and thirty-six cents; and proved by their clerk that the work on the said culvert was completed on the 21st of December, 1833, and that the account last mentioned was received by the plaintiff without objection except as to the quantity of cement charged therein. The defendants likewise offered in evidence several orders, numbered from 1 to 7, drawn by Elijah Barret, by himself and his agents, in favour of William Harris, upon the defendants, at different periods during the autumn and winter of 1833, and claimed the benefit of them as payments to the plaintiff. These orders purport to have been paid all on the same day, viz., April 29th, 1835, rather more than two years posterior to the date of the letter delivered to the defendant’s agent,.positively forbidding any payment to be made to Barret or to his order, and nearly one month after the institution' of this suit. And it is admitted that the orders were never shown to the plaintiff, nor expressly recognised by him at any time. The defendant offered seven other papers purporting to be orders and due-bills signed and certified by Elisha Barret, in November and December, 1833; three of them

Upon the foregoing state of facts, the counsel for the plaintiff moved the Court to exclude from the jury the orders drawn by Barret in favour of Harris,, as well as the evidence offered to prove the payment of those orders in April, 1835, more than two years after their payment had been forbidden bv the plaintiff: the Court, admitted this evidence to go to the jury, and this produces the auestion presented by the first bill of exceptions.

We aré unable to perceive upon wfiat correct legal principle this question was ruled as it has been by the Circuit Court. There is no express power apparent in the record,nor indeedwas any attempted to be shown in the proofs, existing in Barret to bind Fresh for any amount with any person. It is true, that under the contract between them, the former would have had a claim on his own behalf, whenever he should have fulfilled his undertaking; but not even then until he should have procured a certificate from the engineer of the company. But the right or claim he would then have acquired, differs essentially from the pretension sanctioned by the decision of the Court, which amounts to an evasion of the stipulated test of his own conduct and his own rights, and to a claim by that very evasion to bind his employer ad libitum to any amount and to any person. Nor is it perceived that the admission of these orders was warranted by any presumption arising from the fact that orders previously drawn by the sanie person were comprised in the account proved to have been presented by Fresh; and not objected to by him,, except as to the quantity of cement charged therein. Liability for the acts of others may be created eithér. by-a direct authority given for their performance, or it may flow from their adoption, of,.in .some dnstancesfixom

The next question arises upon the admissibility of the. second series of orders and certificates or due-bills' signed by Barret, amounting together to three hundred and seventy-two-dollars ánd fifty cents, embraced in the second bill of exceptions. These-orders are obnoxious, to even stronger objections than", those existing against the former orders drawn by Barret; they not only, like the former, were, never (as is admitted) shown to or acknowledged by the plaintiff, but they carry on their face-no receipt nor other semblance of payment, nor is proof attempted aliúñde, that the defendants have given, or are bound to give, any consideration for them. The Circuit Court should have excluded these ^papers also.

It is next stated that in addition to the evidence previously introduced by the defendants, they offered to prove by a..competent witness, that at the trial of a cause brought by orie Hammond against two of the defendants, and to which the 'plaintiff was not a party, certain facts were proved by a witness examined in that cause. The plaintiff asked the exclusion of this testimony by the Court, but his motion was denied,-and this denial presents the point upon the third bill of exceptions. The" evidence let'in by this decision of the Circuit Court was not the exhibition of a record, nor even of a judgment, nor -of process; but simply a statement by one witness of what had beeii testified by another, on the trial of a cause to which the■ plaintiff was not a party, without an attempt to account for the absence of the person whose testimony was thus given at second hand. The principles,

In the fourth bill of exceptions it is statedy thaf defendants offered to. prove, that Riah .Gilson and Christopher Midlar, two of .the defendants, superintended the performance of the work on the culvert No. 116, and that, their.superintendence was worth one hundred and fifty dollars. That to the admissibility of this proof, the plaintiff objected.- but the Court permitted it to be received.' The questions here raised, or rather the facts which make the basis of those questions, are somewhat vaguely and imperfectly stated. Enough however can be gathered from them to justify the following conclusions. 1st, That by the written contract'between the plaintiff and the defendant, or by any oral agreement attempted to be shown between these, parties, there is, no. condition established authorizing or requiring the defendants to become the supervisors of the plaintiff in the performance of his work. 2d, That if the defendants have performed the work either in fulfilment of their original contract with the Canal Company, or in consequence' of an abandonment by the plaintiff, a charge for superintendence would appear inconsistent with the’ position they would have occupied in either view. Such a claim is therefore regarded as irregular and unauthorized, and should have been excluded.

.Upon the fifth and final'bill of exceptions, it is in substance set forth, that the'plaintiff haying given in evidence the contract between the Canal Company and the defendants, and the contract under the seals of the plaintiff and Riah Gilson, one of the defendants; the latter offered their account against the plaintiff, arid proof that the culvert No. 116, was not completed until after the 1st of August; 1833, the period designated in the original contract with the company. 'The plaintiff then offered evidence to

Had the ruling of the Circuit Court in this instance been limited, to an affirmance of the second proposition insisted on by the defendants, this Court could not hesitate in sustaining the decision: for we hold it as invariably true, that wherever the rights of a party founded upon a deed are dependent upon the terms and conditions of that deed, the instrument thus creating and. defining those rights must be resorted to, and must regulate, moreover, the modes by which they are to be enforced at law. These identical ■rights cannot be claimed as being derived from a different and an inferior source. If the deed be in force, all who claim by its provisions must resort to it. This is regarded as a canon of the law, and numerous authorities might be adduced to sustain it, both from compilations and from the adjudged cases. 2 Bac. Abr. title Debt, letter (G), citing 13 H. 4 , 1, and Roll. Abr. 604; 1 Chitty’s Pleading, 75; 4 Bos. & Pull. 104; Atty v. Parish, 12 East, 585; Clark v. Smith, 14 Johns. 316 ; Munroe v. Perkins, 9 Pick. 298 .

These authorities, to which many .more might be added, are-full and express to the point that where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must

There cannot be a doubt that where the contract contained in á deed.has been vaiied or, substituted by the subsequent acts or agreements of the parties,, thereby giving rise to new relations between- them,' the. remedies originally arising out of the deed, may be varied in conformity with them. An Action upon the. deed woiild not be insisted upon or permitted, because the rights and obligations of the parties to the suit would depend upon a state of things' by which the deed had been put aside. Hence it has been ruled, that where a person who had covenanted to perform certain work had failed or refused .to fuífil his covenant, but had afterwards, upon the pároi engágement of the covenantee, or by (his acts amounting in law to án engagement, gone on dm whole or in part to do the work, he'might recover the value of the work in'assumpsit, upon a; quantum íneruit.' So- too, between partners, though articles- of copartnership have been sealed between them, yet, lipón an account stated, and a balance struck, assumpsit will lie( This principle is illustrated in several of the, authorities already quoted,-and in none of them more forcibly than in those of White v. Parkin, 12 East, 585; Monroe v. Perkins, 9 Pick. 289 ; to which may. be added the cases of The Marine Insurance