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or where he is to receive a fixed sum for the whole and he has no remedy until he has fully performed work, then in the proportion which the work done his part, is not now the recognized doctrine of the bears to the whole work; or, where there is no courts." See also Lamb v. Brolaski, 38 Mo. 51, price fixed then upon a quantum meruit, from 53; Ryan v. Dayton, 25 Conn. 188; Epperly v. wbich, however, there must be deducted whatever Bailey, 3 Ind. 73; see also the numerous cases damages may have resulted to the employer from cited by Mr. Field in his work on Damages, section the failure to fully perform the contract by the em- | 334, note 2+; and also cases cited in 3 U. S. Digest, ployee." Field on Damages section 326. Mr. first series, page 521, No. 2,390. Field also after commenting upon the case of Brit The weight of authority at the present time we ton y. Turner ante, and speaking of the argument think is unquestionably against the doctrine that therein contained as being an able one, then says, where a contract is entire and consequently not ap. that “the tendency of the decisions seems to be in portionable, and has been only partially perbarmony with the views thus ably set forth." formed, the failing party is not entitled to reSection 332. He further says, “The doctrine of cover or receive anything for what he has actually Britton v. Turner is also now fully or partially re done. It will perhaps be adınitted that sich doccognized in Michigan, Wisconsin, Indiana, Illi trine has been overturned with respect to all connois, Pennsylvania, Maine, Texas, Tennessee, Mis tracts except those for personal services; and if so, souri, New York, and other states. Section 331. then there is not much of the doctrine left. But if "And the doctrine, in view of its manifest justice, the doctrine is to be abandoned with reference to is likely to grow in favor until it becomes univer ail contracts except those for person el services, sally recognized.” Section 335.

then why not abandon the doctrine altogether? Mr. Par-ons also says, “The case of Britton y. The reason usually given for not wholly abandon. Turner, 6 N. H. 481, resists the whole doctrine of ing the doctrine is, that the employer in contracts these cases (previously cited by him) and permits for personal services has no choice, except to acthe servant to recover on a quantum meruit. His cept, receive and retain the services already perright to recover is carefully guarded in this case formed, while in other contracts he m'y refuse to by principles which seem to protect the mas accept or may return the proceeds of the pirtially ter from all wrong, and to require of him only performed contrast if he chooses. But this is not such payment as is justly due for benefits received

always nor even generally true with respect to and retained, and after all reduction for any dam

other contracts. Suppose a miller purchase a age he may have sustained from the breach of the

thousand bushels of wheat for a thousand dollars, contract. So guarded, it might seem that the prin

the wheat to be delivered within one month; he ciples of this case are better adapted to do ade

receives the wheat as it is delivered and grinds quate justice to both parties, and wrong to neither

it into flour; when the vendor na delivered 500 than those of the numerous cases which rest upon

bushels thereof he refuses to deliver any more; the somewhat technical rule of the entirety of the

what choice has the miller then except to retain contract." 2 Parsons on Cont. 6th ed. 38, 39. The

what he has already received? This kind of supfollowing cases are also in point: Pixler v. Nichols,

position will also apply to the purchase and sale 8 Iowa, 106; McClay v. Hedges, 18 lowa. 66; Mc

of all other kinds of articles where the purchaser Affer y y. Hale, 24 Iowa, 356; Byerlee v. Mendel,

on receiving them changes their character or 39 lowa, 382; Wolf v. Gerr, 43 lowa, 339.

sells them so that he cannot return them. Or supIn the case of McClay v. Hedges ante, Judge

pose that an owner of real estate employs a man to Dillon, who delivered the opiniou of the court,

build or repair some structure thereon for a gross uses the following language: "This question was

but definite sum, the owner of the real estate to settled in this state by the case of Pixler v. Nich

furnish the materials or a portion thereof in case ols, 8 Iowa, 166, which distinctly recognized and

of building, and either party to furnish them in expressly foliowed the case of Britton v. Turner, 6

case of reparing, and the job is only half finished, N. H. 481. That celebrated case has been criti

what choice has the owner of the real estate with cised, doubted and denied to be sound. It is fre

reference to retaining or returning the proceeds of quently said to be good equity, but bad law. Yet

the workman's Jabor? This kind of supposition will its principles have been gradually winning their

also apply to all kinds of work done on real way into professional and judicial favor. It is bot

estate, and will often apply to work done on tomed on justice and is right upon principle, how

personal property. Of course in all cases where ever it may be upon the technical and more illiberal

the employer can refuse to accept the work, and rules of the common law, as found in the older

does refuse to accept it, or returns it, he is not cases." 18 Iowa, 68. See also Hillyard v. Crabtree, bound to pay for it, unless it exactly corresponds 11 Texas, 264; Carroll v. Welsh, 26 Texas, 147, 149; with the contract. But where he receives is and Hollis v. Chapman, 36 Texas 1, 5. In the last case retains it, whether he retains it from choice or cited the court uses the following language: “But from necessity, he is bound to pay for the same this court, by a siiccession of decisions, has settled what it is reasonably worth, less any damage that the question of the apportionability of contracts he may sustain by reason of the partial non-fuland we are inclined to follow these decisions in fillment of the contract. Of course he is not bound this case." (Citing the above and other cases.) In to pay anything unless the work is worth somethe last case the court says, “The doctrine of the thing, unless he receives or may receive some earlier decisions, to the effect that where the con- | actual benetit therefrom; and where he receives or tract in cases like the present is entire, the per- may receive some actual benefit therefrom, he is formance by the employee is a condition precedent, bound to pay for such benefit, and only for such


the issue to be tried. “By the words "contract or cause of action in issue and on trial,' as used in the statute, the legislature evidently intended such contract or cause of action as was to be enforced by the proceeding; that in regard to which an issue was to be formed and a trial bad, where the rights of the parties to the contract or cause of action would be determined by the result." Manufacturers Bank v. Scofield, 39 Vt. 590-594. In Downs v. Belden, 46 Vt. 674, it was held that where A sued Bin trover for the conversion of property which A bought of C, who was dead, A was a competent witness in his own behalf, as to his contract of purchase with C. In Granger v. Barrett, 98 Mass. 302, speaking of the cases in which a party may be a witness under a statute like ours, the court said: “ His competency must be determined in advance by the nature of the controversy, and the questions in issue. If upon that test he is admitted as a witness in the case, his testimony is competent for all purposes, although it may relate to transactions with a person since deceased, which prove to be involved in, or to affect the matter in dispute."

The case of Looker v. Davis, 47 Mo. 141, is to the same effect. We think the rule enunciated in these cases the correct one. It follows that the plaintiff was a competent witness. In Poe v. Domec, 54 Mo, 119; and Johnson v. Quarles, 46 Mo. 423, the transactions in reference to which testimony was excluded, on the ground that one of the parties thereto was dead, were brought directly in issue by the pleadings. In Angell y. Hester, 64 Mo. 142, a promissory note, made by the defendant, was the contract in issue and on trial, and the defendant was offered to vary his liability thereunder by reason of a transaction had with the other party to said contract, who was dead. We held that he was properly excluded.

We see no error in the record, and the judgment will be afirmed. All concur.

In Mitchell y. Davis, 23 Cal. 381, the record of proceedings in a forcible entry case, was held admissible to prove the extent and right of plaintiff's possession, and that defendant was estopped from denying the same. In Stean V. Anderson, in trespass, 4 Harr. (Del.) 215, the chief justice, for the court, declares the law to be, that a verdict and judgment in a former action of trespass between the same parties were final and conclusive: 1st, that such trespass was committed by the defendant; and 21, that plaintiff was in the actual possession of the land, where and at the time when the trespass was committed. 2 Waterman on Trespass, $ 1122, p. 568. Iu Harvie v. Turner, 46 Mo. 444-8, in a forcible entry case, plaintiff, Harvie, having given evi. dence tending to prove peaceable possession, by himself, in the premises, defendant, Turner, offered in evidence the record of the proceedings and judgment in a prior forcible entry and detainer suit, wherein he was plaintiff, and one Howe was defendant, for the purpose of showing that the point in issue in the pending suit had been adjudicated, and in connection with the record offered to prove that Howe entered and took possession under Harvie's anthority and as his tenant, that the action was for the same premises, and that the verdict and judgment therein were rendered upon the same facts and issues, that were involved in the present action. It was held that the record was admissi. ble, and determined that Turner, as a matter of fact within the three years next prior to the insiitution of that suit, was in peaceable possession of the cabin enclosure, and that his possession was unlawfully invaded by Howe. "These facts can not be litigated over again in a forcible entry and detainer suit between the same parties, altuough the subsequent suit may embrace premises not included in the first, and to that extent the identity between the two is perfect and indisputable. It would hardly be claimed that Howe could es. cape the consequences of the first judgmeut by a mere enlargement of the claim, sueing for all that was em braced in the original litigation and something more. If that could be done, judy.ents could be rendered of no effect, by mere artifice and subtlety." This case is upon "all fours" with the present one, and the fact that the form or the present action was different from the former one, is immaterial. 2 Wharton Ev., $ 779, and cases cited, The weight of American authority sustains the principle that a judgment of a court of competent jurisdiction directly upon a particular point is, between the parties, conclusive in relation to such point, though the purpose of the suits be different. Transportation Co. v. Traube, 59 Mo. 362; Spencer v. Dearih, 43 Vt. 98; White v. Coatsworth, 6 N. Y. 138; Freeman on Judgments, $ 258, and cases there cited.

2. As to the competency of the respondent as a wit. ness in this case, his grantor being dead.

By the general law respondent was competent, unless he came within the limits of the proviso contained in the Missouri statute: “ Provided that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor." 2 Way, Stat. p. 1372, § 1. By the “contract in issue" is meant the contract in issue and on trial. Morse v. Low, 44 Vt. 561. And by these words, "contract or cause of action in issue,” the legislature evidently intended such contract or cause of action as was to be enforced by the proceeding; that in regard to which an issue was to be formed and a trial had, where the rights of the parlies to the contract or cause of action would be determined by the result. Manf. Bank v. Schofield, 39 Vt. 594.

In this case there was no contract in issue and on trial. The cause of action in issue and on trial was the

NOTE.-In the previous action in this court, Bradley v. West, 60 Mo. 62, the court, at defendant's request, gave three declarations of law, which are cited in full in Judge Wagner's opinion, in the case on appeal, which made it necessary, before there could be a verdict for complainant, for the court to find that complainant was in the actual visible possession of the land claimed, and that at the time defendant entered, complainant had entered upon the land, that defend. ant entered upon that possession of the complainant and turned him out, and that such entry was unlawful and wrongful. This matter of prior possession by the respondent in the case at bar on the 26th of April, 1869, having thus been solemnly adjudged in that cause by a competent court upon its merits, it was conclusively settled as between the parties to that action, and the record, judgment and proceedings therein were admissible in the second suit, for the purpose of showing such a ljudication. McKnight v. Taylor, 1 Mo 282; Otfutt v. John, 8 Mo. 124; Iarvie v. Turner, 46 Mo. 444; Ridgely v. Stillwell, 27 Mo. 128; Strong v. Ins. Co., 62 Mo. 295; Wood v. Eusel, 63 Mo. 194; 2 Wharton Ev., $ 758, and cases cited. And the bill of exceptions, preserved by appellant in that cause, was ad. missible to show what facts were in issue and decided.

Wharton Ev., $ 83.), and cases cited. Hickerson v. City of Mexico, 58 Mo. 64.


right to the possession between Horton's grantee and Schofield, 39 Vt. 599; Cole v. Shurtliff, 41 Vt. 311; and an intruder, in no way connected with him, not in Moores, Exr. v. Low, 34 Vt. 561. We think there was privity, either in law, blood or estate, but holding and ! no error in admitting this testimony." claiming in. hostility to the title he conveyed by his deed. It was an action of ejectment for recovery of possession of land of respondent, upon which he wrongfully withheld. That was the "cause of action at issue and on trial,” and both parties to this cause

| NEGLIGENCE – MASTER AND SERVANTwere living; and the test of competency was the cause

INDEPENDENT CONTRACT. of action thus at issue and on trial, and not the facts to wbich either party might be called to testify. Looker v. Davis, 47 Mo. 145; Angell v. Hester, 64 Mo.

CARTER V. BERLIN MILLS CO. 152, and cases there cited. The doctrine contended for by appellant in this case was that whenever a party to an action against a stranger or wrong doer derives

Supreme Court of New Hampshire. any right or title to the thing in controversy by contract, and his immediate or remote grantor is dead, he then and thereby becomes disqualified to testify as a

1. THE LIABILITY OF A PERSON FOR DAMAGES witness to any fact upon which his title is based, or to

arising from the negligence or misleasance of anotber, sustain the fairness and genuineness of any documen

in the performance of a lawful contract, is confined, tary evidence by which that title is witnessed. This

in its application, to the relation of master and servant, position seems unwarranted by either the language or

or principal and agent, and does not extend to cases of spirit of the statute removing the disqualifications as

independent contracts not creating those relations, and witnesses, of parties to civil proceedings, or by any ad

where the employer does not retain the control over judications under it. It will be found upon an examin

the mode and manner of executing the work under the ation of the cases decided by this court, some of which

contract. are cited in the opinion in the principal case, that the 2. THE IMMEDIATE EMPLOYER OF THE AGENT or exclusion of a party as a witness has resulted from the servant who causes the injury is alone responsible tor contract with the deceased being in issue and on trial, it: to him only the rule respondeat superior applies. and that the heirs, privies or legal representatives of the deceased, were either parties to the record, or Case, to recover damages for injuries to the the rights of the estate were involved in the issue, and

plaintitf's land, occasioned by flowage. Facts would be affected by tho result. If the proviso were

found by referee. construed to have the extensive effect contended for, it would operate to exclude the testimony of an opposite

The plaintiff is the owner of lands situated on party in every case, to any fact whatever, where he

both sides of Clear Stream, in the town of Errol. derives any right, title or interest from a contract with Clear Stream, where it divides these lands, is a a person who may be dead at the time of trial, and in public highway, for the purpose of driving logs in which bis right, thus acquired, may be contested by the season of the year when such business any stranger to such contract, or who may be claiming is usually done, and in times of high wain open hostility both to his own right and that of his

ter. The defendants own timber lands on the dead grantor, on the trial of a cause of action which

stream, above the plaintiff's lands. They also own may have arisen long after the death of such grantor. Isenhour v. Isenhour, 64 N. C. 640.

dams, above the plaintiff's premises, on the stream, The case of Downs v. Belden, 46 Vt. 674, decided

built for the purpose of holding back the water, upon a statute, precisely like our own, is directly

and then letting it out to assist in driving logs opposed to such a coustruction, and fully in point on

down the stream when the ordinary flow of the the question involved here. That was a case of trover water is insufficient for that purpose. and conversion of personal property in which plaintiff In the fall of 1873 tbe defendants made a conDowns claimed by purchase through one James Bel

tract with J. A. & E. D. Thurston, whereby the den, deceased, and so testitied, to which defendant ob

Thurstons, for a stipulated price per thousand feet, jccted because James Belden, bis grantor, was dead.

were to cut from the defendants' timber lands cerPierrepont, C. J., delivering the opinion of the court, says: “ The defendant insists that the testimony of

tain large quantities of timber, and deliver the plaintiff as to purchase of the property in question of

same at the mouth of Clear Stream, where the James Belden should have been excluded, under sec. stream empties into the Androscoggin. The tion 24, ch. 36, of Gen. Stilt., the said James Belden Thurstons were at liberty to use the defendants' being dead. This is an action in trover to recover the dams if they wished to. value of the property in queition. The cause of action

In fulalling their contract, the Thurstons used in issue is the unlawful conversion of the property by

the defendants' lower dam by shutting the gates the defendart. The parties to this cause of action are both living. Hence the case does not come within the

at night and opening them in the morning, until letter of the statute, as in Hollister v. Young, 41 Vt.

the rear of their drive had passed the plaintiff's 156. James Belden's estate is in no sense a party to

premises. The referee found that the plaintiff had this suit, or in any way interested in or atlected by the sustained damage, by an unreasonable use of the result, and for that reason the case does not come stream, through the operation of the defendants' within the spirit of the statute, or the prin«iple recog.

dams by the Thurstons, but that the defendants nized in Fitzsimmons y. Southwick. and Chaney v.

I had nothing to do with cutting, hauling or driving Pierce, 38 Vt. 509-15, and that class of cases. The purchase of the property by plaintiff of Jannes Belden

the timber down the stream, nor with occasioning was a matter collateral to the cause of action in issue

the damage complained of, unless they are liable and on trial. It was material and admissible as bear because of their ownership of the dams and of the ing on the question involved, but it did not constitute | land where the timber was cut. the basis of the action or of the defense, and comes | The court ordered judgment for the defendants clearly within the principle recoguized in Bank v. 1 and the plaintiff excepted.

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