Opinion
May Term, 1899.
Francis E. Baldwin, for the appellant.
Richard H. Thurston, for the respondent.
It is doubtful whether the learned trial judge was correct in determining that there was no evidence introduced by the parties that could be submitted to the jury, showing that the preliminary drawings, for preparing which the plaintiff sought to recover, had been completed before the defendant attempted to countermand his order therefor. The contract was made on Thursday, the 30th day of October, 1890, and the order was countermanded on the Monday following. Three working days had intervened. It appeared that, after the employment of the plaintiff, his draftsman Bickford at once commenced the preparation of the drawings, and was assisted in the work by the plaintiff. On the Monday in question, when it was claimed the defendant countermanded his order, he, and his witness Dunham, went to the office of the plaintiff, and the person in charge produced several sheets of paper similar to the plans produced by the plaintiff on the trial. They were the floor plans of the hotel — single line sketches. The following questions were asked and answers given by plaintiff's witness Dunham, on the trial: "Q. You and he looked at the plans that were there drawn? A. Yes, sir; at the sketches. Q. And they were pinned out upon boards, were they not? A. Oh, no, no; I think they were in the sheet that the lady handed to us in the sheet, as I remember it. Q. And they were done, off and folded? A. Yes, sir; they might not have been folded; I cannot remember that. Q. They were off the board, however? A. Yes, sir. Q. The work was done upon them so far as the sketching it out on a board was concerned? A. They were not fastened to any board."
It is to be inferred that the plans, for the making of which the plaintiff claimed to recover, were produced on the trial. The defendant and Dunham were sworn as to what took place at the time it was claimed the contract was rescinded. They were then shown the plans prepared by the plaintiff. Neither of them testified on the trial that the drawings then shown them were not the same as those produced on the trial, for the preparation of which the plaintiff claimed to recover, or that the preliminary sketches shown to them in the office of the plaintiff on the Monday in question were not completed.
Again, in a letter written November 15, 1890, the plaintiff informed the defendant that he had the sketches prepared according to his instructions. In his answer the defendant failed to make any claim that he had countermanded the order therefor before the sketches were prepared.
The plaintiff did not claim to recover for completed plans and drawings, but only for preliminary sketches, and we are inclined to think that, on the evidence introduced, the jury would have been authorized to determine that the preliminary sketches, which were shown to the defendant at the time he claimed to have rescinded the contract, were completed, and that the only effect of his countermand, at the time in question, was to prevent the plaintiff from going further and making complete plans and drawings.
But assuming that the trial judge was correct in holding that there was no evidence in the case to submit to the jury, as to whether the preliminary plans had been drawn before the defendant countermanded his order therefor, we think he was in error in charging the jury that, if the order was rescinded on the Monday following the Thursday on which it was given, the plaintiff could not recover; and in refusing to charge as requested by plaintiff, that if the plans had been prepared before the attempted countermand, such countermand had no effect.
It is true that the defendant could at any time countermand his order for preliminary sketches ( Clark v. Marsiglia, 1 Den. 317; Lord v. Thomas, 64 N.Y. 107, 109, 110), and that the plaintiff could not recover for work done thereon after such countermand. But the evidence introduced on the trial was such as to authorize a finding by the jury that the plaintiff was employed by the defendant to make the preliminary drawings in question, and that he commenced at once and completed them. The defense interposed by the defendant, that he countermanded the order on the Monday following the day that it was given, was an affirmative one. A countermand did not defeat the plaintiff's recovery unless given before the work was completed. It was for the defendant to show an effectual countermand — one given before the drawings were finished. This he failed to do. The burden was upon the defendant, asserting as an affirmative defense to the plaintiff's claim a rescission of the contract under which the plaintiff claimed, to show that such rescission was made before the work which was shown by the plaintiff to have been done by him was finished.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.