THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia.
It was an action of debt brought by Jones against Ann R. Dermott for the sum of five thousand dollars. The declaration contained four counts, viz:1. That the defendant, on the first day of July, 1852, was indebted to the plaintiff, in the sum of five thousand dollars, for work and labor done and materials furnished to the defendant by plaintiff, and used by her in and about the erection of certain buildings, and finishing and completing certain stores in said buildings, in the city of Washington.
2. For a like sum paid by plaintiff for defendant.
3. For a like sum had and received.
4. For a like sum paid, laid out, and expended by plaintiff, for defendant, and at her request.
The plaintiff below had also filed a bill on the equity side of the court, which was pending; whereupon the defendant moved for a rule upon him to elect between his said action of debt, pending on the common-law side of this court against this defendant, and his said bill pending on the equity side of this court against the said defendant, as to the sum of money, to wit: $14,000, with interest, for which a decree is prayed against said defendant by plaintiff in his said bill.
Whereupon the plaintiff says he elects to recover in this action only the $5,000 mentioned in his said bill in equity, to be paid by defendant on the completion of the said stores and warehouse in said bill mentioned, and claimed on the 1st October, 1851, with interest, and hereby disclaims all and every right or pretension in this cause to recover any portion of said $14,000.
Whereupon the court made the following order, to wit:
The plaintiff having made his election under the said order or rule made at March term, 1854, as aforesaid, to prosecute this action of debt for the recovery of the said sum of $5,000:
It is further ordered by the court, that the said bill in chancery be dismissed, and the same is dismissed accordingly, quoad the said $5,000.
The reporter will not carry the reader through the following process of pleading, the mention of which will be sufficient.
It has been already stated that the declaration contained four counts. The defendant pleaded specially to the declaration setting up the special agreement, &c. Whereupon the plaintiff amended his narr., adding special counts upon the contract. The amended narr. was objected to. Objection overruled, and exception taken. The amended narr. contained the following counts:
1. On the contract alleging performance, and that $5,000 was due, stating the time mentioned in the contract, (1st October,) under a videlicet.
2. Treating the time (1st October) as material, averring that the plaintiff had performed his part, but that the defendant departed from the contract.
3 and 4. The common counts in debt for the extra work.
The pleas were—
To the first count, nil debet, non-performance generally, and non-performance specially, in not completing the stores and warehouse on or before the 1st of October.
To the second, third, and fourth, demurrers.
To the plea of non-performance, in not completing the work on the 1st of October, the plaintiff demurred, and judgment for the demurrer.
Upon the demurrers of the defendant to the second, third, and fourth counts, demurrers overruled, and judgments for the plaintiff.
Verdict for the plaintiff on the first count, and inquisitions, with nominal damages, on the second and third counts, and for the value of the extra work on the fourth count. Judgment accordingly.
From this account of the pleadings, the reader will readily perceive the points of law which came up to this court. But in order to make it more clear, the prayers to the court by the defendant (none being offered by the plaintiff) are inserted. There were five prayers, the only one of which was granted was the fourth. Numbers one and three were granted with a qualification; numbers two and five were refused.
Fourth Prayer. If the jury find, from the evidence aforesaid, that the plaintiff so negligently and unfaithfully executed the work specified in the contract and specifications aforesaid, that, from insufficient drainage, bad workmanship, departure from the written specifications, or other acts or omissions of the plaintiff, in so negligently and unfaithfully executing said work, the three stores and warehouse aforesaid were damaged and injured, as stated in the evidence, then the defendant is entitled to recoup or deduct from the amount claimed in this action all damages sustained by the defendant, and resulting from said injury. Granted.