Rutherford County NcArchives Court.....Thomas M'Guire, Allen Twitty V. 1819
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 6:01 pm

Source: Nc Reports
Written: 1819

Allen Twitty v. Thomas M'Guire

From Rutherford

November Term 1819

A. having covenanted to build for B. a house of certain dimensions and form, 
of good materials, and to execute the work in a workmanlike manner, built a 
house of the form and dimensions set forth in the covenant, but part of the 
materials were not good, and part of the work was not done in a workmanlike 
manner. B. refused to accept the house, and sued A. on his covenant. B. is 
entitled to recover, not the value of such a house as A. had covenanted to 
build, but the difference in value between such a house and the house built, 
and damages for the breach of the covenant; unless the materials and 
workmanship be so inferior as to be of little or no value.

This was an action of covenant brought on the following agreement, to-wit:

"I Thomas M'Guire, of Rutherford county, North Carolina, bind myself, my 
heirs, &c., to Allen Twitty, his heirs, &c., to build a house in Rutherfordton 
on the lot said Allen Twitty bought of William Tate, on the following plan, 
viz.: As long and as high as the corner posts and sills which are already got 
will admit of. The house to be built of good materials, the shingles to be of 
the heart, of pine; the house to have four rooms below, and five windows, a 
partition across the house below; the upper story to be divided into three 
rooms, and have four windows, and, if any more, said Allen is to pay said 
Thomas for It. The lower floor is to be of one inch and a quarter plank, 
quartered, tongued and grooved; the upper floor to be tongued and grooved, of 
quarter plank; the joice to be ceiled with three quarter plank, tongued and 
grooved. The house to be ceiled below, and have a good chimney below, and a 
fireplace above, of good brick. The said Thomas is to have all the old 
materials that are on the lot and to have liberty of working on said Allen's 
land for kiln drying the plank for said house; but not to destroy timber. The 
whole work to be done in a good, plain, workmanlike manner. The house to be 
completed by next October Court. The windows to be twelve lights each, and 
hung with good hinges: also the doors to he hung with good hinges. The stairs 
to be run where said Allen may want. For the true performance of the above 
contract, I set my hand and seal this 30 November, 1816.
                               THOMAS M'GUIRE,   (Seal.)
Test: JN. M'lNTIRE.

On which agreement was the following endorsement, viz.

"Received of Allen Twitty full payment for the completion of the within 
articles, 30 Nov., 1816,
                               THOMAS M'GUIRE."

The Plaintiff, in his declaration, assigned two breaches of covenant: 1st, 
That the materials of which the house was built were not good: 2nd. That the 
work was not done in a workmanlike manner.

It appeared in evidence, that the house built was of the dimensions and form 
prescribed in the agreement, and upon the lot therein mentioned; but that part 
of the materials were not good, and the work was not done in a workmanlike 
manner. That the value of the house, if built of such materials and in the 
manner required by the agreement, was $1,200; and the value of the house, as 
built, was $800; that the Plaintiff had refused to accept the house in 
consequence of the insufficiency of the materials and the work. The Court 
charged the Jury, that if they believed the evidence, the Plaintiff was 
entitled to recover the value of such a house as Defendant had agreed to 
build, with interest on that sum from the day on which the house was to have 
been completed; and that Plaintiff having refused to accept the house, the 
Defendant had the right to it, and might remove it. The Defendant's counsel 
contended that the Plaintiff was entitled to recover only the difference 
between the value of the house built, and the value of such a house as he had 
agreed to build; and that, it being erected on the Plaintiff's lot Defendant 
had no right in remove it, notwithstanding the Plaintiffs' refusal to accept 
it. The Jury gave a verdict for $1,340, the same being the value of such a 
house as Defendant had agreed to build, and interest on that value from the 
day on which the house was to have been completed. A new trial was moved for, 
and, it being refused, the Defendant appealed.

Hall, Judge: It appears that the house built was of the dimensions and form 
set forth in the agreement of the Defendant. When a carpenter builds a house 
substantially different in dimensions and form from that contracted to be 
built, it is in no wise a compliance even in part with his contract; because 
in such case it may not answer the purpose for which his employer contracted 
to have it built. Besides, it is the folly of the carpenter to build such a 
house, when it may be reasonably presumed his knowledge in his art would 
enable him as readily to build a house of one form as another. But where the 
house built, as in the present case, is precisely such a one as the Defendant 
contracted to build, as to the size and form of it, I think the case is 
different. Because the house in question will answer the purpose intended by 
the Plaintiff, although it is of less value on account of some of the 
materials of which it is built not being so good as those Contracted for, nor 
the house built altogether in a workmanlike manner. If this were not the case, 
the smallest deviation by a carpenter, in finishing a house, from the mode 
agreed upon, would render him a delinquent in toto, when perhaps, the things 
complained of did not amount in value to forty shillings. It is therefore 
better that the house built under such circumstances should be considered a 
part performance of the covenant on the side of the Defendant, than that it 
should be thrown altogether on his hands; particularly as an action lies for 
the Plaintiff to recover adequate damages for the injury sustained by him. I 
do not pretend to say, that the house built, although of the dimensions and 
form stipulated by the Defendant, is a part performance of the covenant. If 
the materials and the workmanship are so vastly inferior as to be of little or 
no value. In such case, full damages should be recovered for a non-performance 
of the contract. These are circumstances open for observation by the Court and 
Jury on the trial.

In the present case, the Jury have found that the house contracted to be built 
was of the value of $1,200 and of the house built $800. The measure of damages 
is the difference between those sums, and damages for the breach of the 
contract. 

The rule for a new trial must be made absolute.


File at: http://files.usgwarchives.net/nc/rutherford/court/thomasmg845wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 7.2 Kb