Summary
In Weaver Company v. Phares, 185 Miss. 224, 188 So. 12 (1939), this Court held that where a consideration for a contract is legal, but there are several promises which are divisible, the legal portions of the promises may be enforced.
Summary of this case from Gulf Land and Development Company v. McRaneyOpinion
No. 33671.
April 17, 1939.
1. HIGHWAYS.
Highway construction subcontractor who, at end of 15 weeks, had completed 64 per cent. of work which was required to be performed in 175 working days had not breached time requirements of contract, since at same rate of progress, work would have been finished in 23 weeks, leaving remaining 7 weeks during which subcontractor would have had ample time to do clean-up work left behind.
2. HIGHWAYS.
A highway subcontractor on a federal aid project who worked men overtime and paid them for overtime contrary to government regulations but reported only time allowed by regulations could not recover on contractor's agreement to reimburse him for expenses difference between amount reported and amount actually paid, since overtime payment was contrary to public policy.
3. CONTRACTS.
Courts will leave parties to unlawful transaction, where they are found in so far as any illegal items are concerned.
4. APPEAL AND ERROR.
A plaintiff could not establish right to recover on ground that if box full of original exhibits introduced at trial, the originals of which were sent to reviewing court, were gone through and audited, segregation could be made which would sustain plaintiff's contention, since neither jury, chancellor, nor reviewing court had duty to go through mass of papers and make such segregations.
5. TRIAL.
Where segregations are necessary out of a mass of papers, accounts or other documentary exhibits, the party who relies thereon must make them and put tabulations and computations thereof before triers of fact in some reasonably accessible, concrete and definite form, or the matters relied on in the exhibits will be considered as not having been proved.
ON SUGGESTION OF ERROR. (Division A. May 15, 1939.) [188 So. 570. No. 33671.]1. CONTRACTS.
Where an agreement founded on a legal consideration contains several promises, or a promise to do several things, and a part only of the things to be done are illegal, the promises which can be separated, or the promise, so far as it can be separated, from the illegality, may be valid.
2. CONTRACTS.
Where highway contractor on federal aid project promised to pay all expenses incurred by subcontractor in clearing a highway, including labor, that the subcontractor could not recover from contractor the difference between amount of labor reported and amount actually paid because overtime payment was contrary to public policy, did not bar subcontractor's recovery for other items of expense, since items of expense were separable and contractor's promise was divisible with illegal portions thereof separable from the legal.
APPEAL from the chancery court of Wilkinson county; HON. R.W. CUTRER, Chancellor.
Lotterhos Travis and Vardaman S. Dunn, all of Jackson, and Bramlette Bramlette, of Woodville, for appellant.
We respectfully submit that there was no legal consideration shown for any agreement whatsoever subsequent to the lump sum clearing and grubbing subcontract for $17,500, and that the rights and liabilities of the respective parties must be determined alone by reference to the lump sum contract and its breach by appellee; that, moreover, the said lump sum contract was breached by appellee as a result of his utter failure to conduct the work in a workmanlike manner and stay ahead of the grading machinery; and that accordingly this case should be reversed and remanded for the purpose of determining the right of appellant to recover under its cross-bill. The contrary holding by the lower court, we submit, is against the great and overwhelming weight of the evidence.
The clearing and grubbing contract was entire and indivisible.
Greenwood Lbr. Co. v. Lanham, 129 Miss. 40, 91 So. 703; Robinson v. DeLong, 118 Miss. 280, 79 So. 95; Butt v. Williams, 15 So. 130; Clark v. Till, 177 Miss. 891, 172 So. 133; Carter v. Collins, 151 Miss. 1, 117 So. 336; Drake v. Surget, 36 Miss. 458; Hartford Fire Ins. Co. v. Williams, 149 Miss. 123, 115 So. 199; Restatement of the Law, Contracts, topic 3.
The clearing and grubbing subcontract was breached by H.L. Phares.
The fact that delays may have been caused by labor shortage is immaterial.
Piaggio v. Somerville, 119 Miss. 6, 80 So. 342.
Charles Weaver Company had a legal right to take over the work at Buffalo River and complete same at the expense of Phares, at which time there existed a corresponding legal duty on the part of Phares to turn over the work on demand.
Golwitzer v. Hummel, 206 N.W. 254; Johnson v. Vogel, 222 N.W. 864; Southern Builders Material Co. v. Foto, 122 So. 914; Schmidt Bros. Construction Co. v. Raymond Y.M.C.A. of Charles City, 163 N.W. 458; Cohen v. Felgenhaurer Co., 162 N.Y. Supp. 306; Nelson v. San Antonio Traction Co., 175 S.W. 434; Kann v. Bennett, 72 A. 342; Garrettson Co. v. Rienhart Dennis Co., 84 S.E. 929; Fulton National Bank v. Fulton Co., 87 S.E. 1923; Shank v. Trustees of Lodge 338, 88 N.E. 85, 93 N.E. 452; Tri Burrough Contracting Co. v. Realty Co., 147 N.Y. Supp. 971.
Conceding for the sake of argument that Charles Weaver Company agreed at Woodville, as alleged by Phares, nevertheless such alleged agreement as to extra compensation or modification of the original contract was without consideration and void for at least three equally controlling reasons, namely (1) Phares did only what he was legally bound to do, and Charles Weaver Company asserted only such rights as had already accrued, (2) the alleged agreement was not mutual or voluntary in the legal sense, and (3) it is not shown that the alleged agreement induced the abandonment of the work by Phares.
42 A.L.R., pages 990, 1011, 1012 and 1202; 6 R.C.L. 918; Pritchard v. Hall, 175 Miss. 588, 167 So. 629; Leggett v. Vinson, 155 Miss. 411, 124 So. 472; King v. Duluth, M. N. Ry., 61 Minn. 482, 63 N.W. 1105; Clark v. Jones, 4 So. 771; Shriner v. Craft, 51 So. 884.
It is not shown that Phares turned over the work to Charles Weaver Company in reliance upon the alleged promise of reimbursement.
We respectfully submit that, if the court should not agree with us on the first point set forth above, then the respective rights and liabilities of the parties must be governed by the compromise agreement last in point of time which was entered into in Jackson, whereby the parties solemnly agreed that the basis of payment would be the per centage of work actually done by appellee, calculated with reference to the $17,500 contract, and in this regard the testimony shows that appellee was actually overpaid according to the percentage of work done in the sum of $2,026.99.
47 L.R.A. (N.S.) 338; 58 C.J. 1045, sec. 277; Minton v. Mitchell, 265 P. 271; Wright v. Hardy, 76 Miss. 524, 24 So. 697; Hamilton v. Home Ins. Co. of N.Y., 137 U.S. 371, 34 L.Ed. 708; Ferguson v. Rogers, 195 S.W. 22; City of Anniston v. Ala. Water Co., 93 So. 409; Cogswell v. Cogswell, 126 P. 431; Grosvenor v. Flint, 37 A. 304; 90 A.L.R. 1306.
We respectfully submit that, if the court should not agree with us on the first and second points set forth above, nevertheless appellee is entitled to recover nothing, for the reason that the charges made by appellee for labor payrolls, aggregating $6,663.58, are void as against the public policy of this state and violative of the National Recovery Act, for which reason appellee is not in a position to recover same under any theory of the case.
40 U.S.C.A., secs. 401, 414, 434; McWilliams v. Phillips, 51 Miss. 196; Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745; Mitchell v. Campbell, 111 Miss. 806, 72 So. 231; Lowenburg v. Klein, 125 Miss. 284, 87 So. 653; Green v. Brown, 159 Miss. 893, 133 So. 153; Jones v. McFarland, 178 Miss. 282, 173 So. 296; 12 Am. Jur. 662, sec. 167; Bank of Newberry v. Stegall, 41 Miss. 142.
We say that, if the court should not agree with us on any one of the three points set forth above, nevertheless appellee is not entitled to a recovery in the amount allowed, for the reason that the evidence fails to sustain certain sharges alleged as a basis of recovery, and that the decree of the lower court must be reduced accordingly.
The charges on behalf of both Whetstone and Harvard for services and hire of equipment, aggregating $1,863.20, are not allowable.
Jones Stockett and Clay B. Tucker, all of Woodville, for appellee.
There was no specified time named in the agreement for the work to be done and performed by Phares. There was no stipulation or condition that Phares was to perform this work in such a manner and with such speed, as to stay entirely clear of the grading equipment of appellant.
Therefore, time was not an essential part of the agreement between appellant and appellee, and the record plainly shows that the appellant permitted appellee to work under said agreement only three months and two weeks, and in that time that appellee had cleared and grubbed 9.91 miles, and had completed the hardest part of his work of clearing and grubbing, which was more than fifty per cent performed.
Appellant bases its entire argument and contention in this case upon the stipulation of time, and claims without foundation and proof or requirement in its agreement, that the agreement was breached by appellee because of his failure to do and perform the work in such a manner as to stay out of the way of the grading equipment. It is true that this might have been a hardship upon appellant, but it is also true that appellant could have guarded itself against this hardship by proper stipultions in its agreement with the appellee, which it did not do, so having failed to guard itself, it now finds itself within the rule as laid down in Piaggio v. Somerville, 119 Miss. 6, 80 So. 342.
Contracts must be construed most strongly against makers or grantors and in favor of payee or grantee.
Love Petroleum Co. v. Atlantic Oil Producing Co., 169 Miss. 259, 152 So. 829.
Here we have Phares agreeing to do the clearing and grubbing on P.W.S. 41 for the sum of $17,500, with no specified time named in his agreement in which to do and perform the work and only after he had been working for three months and two weeks, the appellant, Charles Weaver, approaches him with a demand to do and perform the work faster than he was so doing, and upon Phares informing him that he will continue to do as he has done. Appellant makes him the proposition that if he will surrender his agreement to clear and grub the remaining of P.W.S. 41, as it is clear under the agreement appellee had the right to do, that the appellant would pay him all that he had in the work, including services of himself, J.C. Whetstone and H.L. Harvard.
Therefore it is seen that Phares refrained from doing what he had the right under the agreement to do, that is complete the clearing and grubbing of the said P.W.S. 41 from Buffalo River south to its termination, and that appellant actually benefited by said agreement because he was thus permitted to secure and protect himself from delays, which he had failed to do in his original agreement. Which is sufficient consideration for any promise between parties as held by this court in Miller v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129.
Magee v. Catching, 33 Miss. 672; Fetterman v. Badger Lbr. Mfg. Co., 162 Miss. 547, 139 So. 406; Lusk-Harbison-Jones, Inc. v. Universal Credit Co., 164 Miss. 714, 147 So. 786; Milstead v. Maples, 180 Miss. 476, 177 So. 790.
We submit that all money paid out by Phares according to the time books of Phares, which have been made exhibits hereto, can and was segregated, and that the Chancellor so decided against appellant and that the findings of the facts of the Chancellor thereon was not error.
Crawford v. State, 162 Miss. 158.
Argued orally by Vardman S. Dunn and Cecil F. Travis, for appellant, and by Clay B. Tucker, for appellee.
Appellee had a contract with appellant to clear and grub a link of a state highway in Wilkerson County in part performance of a principal contract which appellant had with the State Highway Commission. The length of the link was approximately 16 1/2 miles. The contract was awarded on June 17, 1936, was signed on July 11, 1936, and was to be completed in 175 working days or in about 30 weeks, after delivery of the work order. Appellee began work on July 24, 1936, a few days after the issuance of the work order, and on November 7, 1936, that is to say, at the end of 15 weeks, he had covered a distance of approximately 10 miles, or according to the more specific calculations, about 64% of his work. At the same rate he would have finished in 8 weeks more, making a total of 23 weeks, leaving a remainder of 7 weeks during which he would have had ample time to do the clean-up work left behind.
There was, therefore, no breach of the contract by appellee, and pursuing the entire record by a close analysis of the facts, we are of the opinion that under the evidence, the findings by the chancellor are supported adversely to appellant on every assignment of error, save as to the following:
This was a federal aid project and under the Acts of Congress and the government regulations adopted in pursuance thereof the hours of work for manual labor were limited to eight hours per day and to specified hours per week. This was to spread the employment among as many in need of work as was reasonably possible and practicable, eight hours being deemed both reasonable and practicable — all this to furnish employment and to relieve unemployment. Appellee, instead of observing the contract with the State Highway Department in this respect, and the government regulations aforesaid, worked men overtime and paid them for the overtime, so that his pay rolls, Nos. 1 to 16, upon which he seeks here to recover, showed a total paid out for labor in the sum of $6,663.58, while in reporting to the government labor checker, his pay rolls disclosed not the time the men actually worked, but the hours which, under the contract and the labor regulations, they were allowed to work, with the result that the certified labor pay rolls made for the State Highway Department and the Federal Government showed a total of $5,038.80, or a difference of $1,624.78. Appellee cannot be allowed to recover this difference against appellant; and it is immaterial that appellant knew of this overtime and acquiesced in it while the work was going on, and, therefore, knew it when appellant later, by a new arrangement, agreed to reimburse appellee for all the expenses of the work.
The overtime employment was contrary to a definite and distinct public policy as regards such federal aid work, and anything expended by appellee in direct furtherance of that overtime employment was an expense against the law. In seeking to recover that expense, even as against a third party who subsequently promised reimbursement therefor and even though the third party had known of the illegal acts and had acquiesced in them at the time committed, appellee is obliged to base his effort, so to recover, upon his original unlawful action. If the courts were to aid appellee in this effort, it would be to sanction and to legalize that which was unlawful, and this no court will do, but will leave the parties where found — insofar as any illegal items or portions are concerned. All this is so well settled that citation of authority is unnecessary, but we might point to a recent treatment of the subject in 12 Am. Jur. pp. 662 et seq., wherein, among others, a number of cases by this Court is cited.
Appellee says, however, that his sixteen pay rolls amounting to $6,663.58, while apparently entirely for labor, actually embraced expenditures for truck, skidder and mule hire, and that if all the box full of original exhibits introduced in the trial court, the originals of which were sent here, were gone through and audited, a segregation could and can be made of the expenditures last mentioned, which, when ascertained, should and could be deducted aside from the labor part of the total of $6,663.58.
It is not the duty of a jury or of a chancellor, and certainly it is not our duty here, to go through a mass of papers, much less when there is a box full of them, as here, and make any such segregations. We dealt with this question in Crawford v. State, 162 Miss. 158, 138 So. 589, and we simply add here, as a result of the holding in that case, that where segregations such as here suggested by appellee are necessary out of a mass of papers, accounts or other documentary exhibits, the party who relies thereon must make them, and put the tabulations and computations thereof before the triers of fact in some reasonably accessible, concrete, and definite form, else the matters relied on as being buried in the exhibits will be considered as not having been proved at all.
The decree will be reversed, and a decree entered here for appellee for the amount of the original decree, which was $3,114.90, less $1,624.78, making the amount of the decree here $1,490.12, with legal interest thereon to run from the date of the original decree, which was December 15, 1938.
Reversed and modified decree here for appellee.
The appellant suggests that we erred in awarding the appellee any recovery at all; that we should have held that no portion of its promise to reimburse the appellee for the expense incurred by him under his contract to clear and grub a part of the highway is enforceable. The reason given therefor is that as a part of this expense for which reimbursement was promised was illegally incurred, the entire promise was thereby void. In support of this, the appellant cites cases holding that where a part of the consideration for a promise is illegal, the promise is void.
The illegality here is not in the consideration for the appellant's promise, but appears in the promise itself. The consideration for the appellant's promise to reimburse the appellee for the expense incurred by him under his contract to clear and grub the highway, was the surrender of that contract and the turning over of the completion of the clearing and grubbing to the appellant — a perfectly legal and valid consideration. What we held was that this promise was invalid in so far as it covered the highway expenditures made by the appellee — that a part of what the appellant's promise to do was illegal in that it violated a public policy. "Where (as here) an agreement founded on a legal consideration contains several promises, or a promise to do several things, and a part only of the things to be done are illegal, the promises which can be separated, or the promise, so far as it can be separated, from the illegality, may be valid." 13 C.J. 512; 6 Williston on Contracts (Rev. Ed.) sec. 1779; 1 Elliott on Contracts, sec. 249; 12 Am. Jur., Contracts, sec. 220. While this promise was to pay all the expenses incurred by the appellee under his contract to clear and grub the highway, that expense was made of many separate and distinct items, among which were the payments made separately to individual laborers for labor performed by them. The items of this expense being separable, the appellee could have recovered for his legal expenditures without proving those that were illegal or claiming payment therefor. The appellant's promise, therefore, is a divisible one, the illegal portions thereof being separable from the legal. Cf. Jones v. Brantley, 121 Miss. 721, 83 So. 802, 8 A.L.R. 1353.
If the illegal portions of this promise showed gross moral turpitude, a different question might be presented. Williston, op. cit., section 1779. But such is not the case here. In Dixie Rubber Co. v. Catoe, 145 Miss. 342, 110 So. 670, and other cases cited by the appellant, the illegality was in the consideration for the promise, but here the consideration for the appellant's promise was legal.
Overruled.