Opinion
07-17-1886
CRANDALL v. GROW.
J. J. Crandall, pro se. D. J. Pancoast, for defendant.
On bill and proofs on final hearing. Facts appear in the opinion.
J. J. Crandall, pro se.
D. J. Pancoast, for defendant.
BIRD, V. C. These parties entered into an agreement under which G. was to print a book for C. for the consideration of $1 per page for the larger, and $1.50 for the smaller, type, each form to be paid for as it came off the press. C. alleges in his bill that G. did not perform the contract in its terms and spirit, and that he brought suit against him because the book was printed upon an inferior quality of paper, and did not print the book in a workman-like manner, and recovered judgment in the court of law for $300. C. sets up in his bill that G. holds his promissory note for $250, "and that the only and sole consideration in and for said note is a balance of about $130 intended for the printing of said book according to contract." The bill further alleges that said noteis void in the hands of G., and prays for an injunction restraining him from transferring said note, and for an order requiring him to surrender it to C. The injunction was allowed. And now, upon final hearing, the question is whether or not the note shall be declared void in the hands of G., and he be compelled to surrender it to C. without having credit for the amount still due upon it on the judgment which C. recovered against G. C. insists that he is entitled to the benefit of the verdict of the jury, which gave him $300 by way of damages for breaches of the contract, and also to have the note surrendered to him as void, and to keep the book, which was printed by G. and delivered to C. In other words, it is urged that G. is entitled to all he had received directly from G., or all that he may yet receive through the verdict of the jury, without the least liability on his part to pay for so much of the work as he has received and appropriated to his own use. To sustain this view reference is made to Ellis v. Hamlen, 3 Taunt. 52; Smith v. Brady, 17 N. Y. 184; Gutter v. Powell, 6 Term R. 320; Haslack v. Mayers, 26 N. J. Law, 290; School Trustees v. Bennett, 27 N. J. Law, 517; Bellinger v. Craigue, 31 Barb. 535; Davis v. Tallcot, 12 N. Y. 189; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 152; Dunham v. Bower, 77 N. Y. 80.
I think that we will get at the right view of this case if we consider that the complainant is in a court of equity asking relief, and take for our standard the maxim that "he who asks equity must do equity." In this case C. has accepted the book, and has recovered a verdict of $300 for the unfaithful performance of the contract, and now comes and insists that this court shall give him $130 (or about that sum) in addition. I can see no reason for taking any such step in this case after what the jury has done for C. I submit that this case may be likened to that of borrower and lender under a usurious contract, in which, if the lender comes into court, the borrower can safely insist upon the enforcement of the penalty; but if the borrower comes in he will be required to pay what is really and bona fide due. Hudnit v. Nash, 16 N. J. Eq. 550. Let it also be considered that this work was performed in parts, and was to be paid for in parts; that is, the book was to be printed in larger and smaller type, and was to be paid for as each part came off the forms, and it nowhere appears that C. made any objections to the work, or refused to receive it. And, besides this, C. has recognized, to some extent at least, the divisibility of the contract by his payment, not only in giving the note, but in making payments upon it.
I will advise a decree that G. surrender the note, and that C. give him credit for the amount still due thereon upon his judgment. C. is entitled to costs.