Hibbard v. Kirby. tracts to serve until a certain result is accomplished, if he quits without just cause, he is not entitled to recover anything for his contract." [Given.] 2. "If the jury believe from the evidence that plaintiff is a mechanic, builder, or artisan, and not an ordinary laborer, they will find for the defendant." [Refused.] 3. "A contract entire in point of time must be completely performed before any right to compensation accrues." [Refused.] 4. "When a person undertakes to do work, which requires skill in the performance of his contract, he will be held to strict performance thereof, and should he fail, he is not entitled to compensation." [Given.] 5. The plaintiff is suing upon his contract, and cannot recover upon a quantum meruit; that is, unless he has complied with his contract, he is not entitled to recover what the work is reasonably worth." [Refused.] 6. "If a person holds himself out to the world, as a workman, that very representation raises a covenant that he will do his work in a workmanlike manner." [Given.] 7. "When the time of payment is, not expressed, the implied agreement is, that it shall be when the service is performed." [Refused.] The court gave the 1st, 4th and 6th, and refused the 2nd, 3d, 5th and 7th of these instructions. (a). The second instruction asked for by appellant, and refused by the court, manifestly related to the laborer's lien feature of the suit, as to which there was no verdict or judgment; and as an abstract proposition, whether law or not, is of no consequence in this suit. The proper steps to fix such a lien, if there was a right to any, do not appear to have been taken, and doubtless the court treated the suit as a personal action for wages. Hibbard v. Kirby. TRACTS Entire, action on.. (b.) It is not submitted in the brief of counsel for 5 CON. appellant that the third instruction should have been given. It asserts as a legal proposition that, "a contract entire in point of time must be completely performed before any right to compensation accrues." The rule seems to be that if the contract of the servant to labor, be for a specified period of time, and payment is to be made, either expressly or by implication of law, at the end of the period, and the servant leaves the service of his master improperly, without a sufficient cause, and without his consent, before the expiration of that time, he can recover no compensation for his services, either on the contract or on a quantum meruit. 2 Chitty on contracts, (11 American Ed.) 844 and notes. See also, Wright v. Morris, as ad., 15 Ark., 444; Walworth v. Finnegan, 33 Ark.. 751; Fain v. Godwin, 35 Ark., 110. In this case appellant did not swear that appellee contracted to serve him for a specified period of time to be paid at the end of the period. His version of the contract was that he employed appellee to make purchases for him at $5 per day, and after that to serve him at $75 per month and his board, until the smelter was erected and put in successful operation. That he paid him for the days he was engaged in purchasing machinery, and a month's wages, and paid him money whenever he called for it. Admits that he did not object to his leaving his service; was not satisfied with his skill as a smelter of silver ores. O F THE (c.) The fifth instruction assumed that appellee was 6. JUSTICE suing on a contract, and asserted as a legal proposition that Practice; he could not recover on a quantum meruit. No complaint was filed before the justice, and none was required. The account filed was for 96 days' labor at $5 per day, with credits deducted. variance. St. L., I. M. & S. Railway Co. v. Hart. Appellee swore that he was employed at $5 per day. Witness Baldwin testified, without objection from appellant, that the services performed by appellee were worth from three to five dollars per day. This was the only evidence on a quantum meruit. No doubt in a suit before a justice of the peace on an open account for wages, no formal complaint being required or filed, plaintiff may prove a verbal contract for stipulated wages if any was made, or if not, the value of the services. rendered. (d.) It may be true as an abstract proposition, and as asserted in the seventh instruction, that when the time of payment for labor is not expressed, there is an implied agreement that payment is to be made when the service is performed. The remarks made above in relation to the third instruction apply to the seventh. (e.) Upon the whole, the instruction given for appellee, and such as were given for appellant, fairly submitted the case to the jury. Affirmed. ST. L., I. M. & S. RAILWAY Co. v. HART. 1. ACTION: For use and occupation is ex-contractu. Exemption. The statutory action for use and occupation is of the nature of assumpsit at common law on an implied promise, and not an action ex-delicto; and is subject to the exemption of the Constitution as a debt by contract. The exemption clause of the Constitution is highly remedial, and should be liberally construed. ERROR to Nevada Circuit Court. Hon. J. K. YOUNG, Circuit Judge. St. L., I. M. & S. Railway Co. v. Hart. Smoote & McRae, for plaintiff : The occupation was a tort, a mere trespass, and not a "debt by contract," within the meaning of Art. 9, Sec. 1, Const. 1874. Thomp. on Homesteads, sec. 381; State v. Melogue, 9 Ind., 196; Crane v. Waggoner, 27 Ind., 52, and 83 Ib., 85; 1 Parsons, 6 Ed., 475; Bliss on Code Pleaa., secs. 128 and 152 to 154; Gantt's Dig., 4023. C. C. Hamby, for defendant: 1. The action for use and occupation is one of assumpsit upon an express or implied contract, and not on the case ex-delicto. 7 Ark., 305; 25 lb., 134. It is based on the relation of landlord and tenant, and will not lie where there is a wrongful taking, retention or holding. 2 Nott & McCord, S. C., 156; 4 Ohio, 205; 6 Ib., 371; Acts 1874-5. P. 196. 2. Debt by contract in Sec. 1, Art. 9, Const. 1874, includes every pure contract, express, implied or special. Exemption laws being of a humane nature, intended to aid. one in distress, are liberally construed. Thomp. on Homesteads, sec. 7, and cases cited. EAKIN, J. The appellant company had recovered judgment against Hart, in the Circuit Court, for use and occupation of land, and had caused an execution to issue. Defendant filed a schedule of personal property, as exempt; and obtained a supersedeas. This is a motion to quash the supersedeas. It was refused, and the company appealed. It takes the ground that the provisions of the Constitution (Art. IX., Sec. 1), apply only to "debts by contract, and that the statutory action, for use and occupation, supposes a tort." That there is no contract in fact, but a trespass, for which the Statute has given a new remedy. Vaughan et al v. Kennan. The action for use and occupation, given by section 4023 of Gantt's Digest, to the owner of lands against another who has held and occupied them, is, in all respects, of the nature of assumpsit at common law on an implied promise, and is an action ex-contractu, and not ex-delicto. There are remedies in tort also, against trespassers, which an owner of land might elect to pursue; but if he adopts this, he adopts it with its characteristics, and waives the tort. It would be reasoning too nicely to confine the meaning of the Constitution to contracts actually made, or existing in the intention of the parties. The exemption clause is a highly remedial one, and to be liberally construed. The supersedeas should not have been quashed. Affirm the judgment. VAUGHAN ET AL V. KENNAN. 1. BILLS AND NOTES: Construction of; Interest; Rate and computation of; Application of credits. A promissory note payable at a future fixed day, "with ten per cent. per annum from date," and stipulating that "if the interest be not paid annually, to become principal and bear the same rate of interest," will continue to bear interest at ten per cent. after maturity; and the unpaid interest due at maturity of the note, and each successive annual installment of interest from that date, will bear interest at the same rate (ten per cent.); not, however, so as to compound the interest on the amounts in default. They will each bear simple interest only, at the contractual rate. It is only the interest on the principal which will become principal. Credits will be applied, 1st, to the deferred amounts of annual interest, with the secondary interest accrued thereon, and the remainder, if any, to the interest accrued on the principal since the last annual period, and then (if any remains) to the principal itself. It will be only the interest on the balance of principal from that time to the annual period which will be next payable, or be subject to interest, and so on. |