____________________________________________________________________________ Jesse Simpson vs. Robert McDonald Where a party stipulates to build a mill, which shall cut or grind certain quantity, for an agreed compensation, and fails in the performance of the contract, he cannot afterwards recover a quantum meruit count for the value of the work and labor done, and materials furnished. But if after failure, he is permitted by the other party to go on and rebuild the mill, which work is afterwards accepted, without any objection to its sufficiency, a recovery by suit may be had of the value of such work on the implied contract. To allow one to perform a piece of work, without a special agreement, and afterwards to accept it, raises in law an implied contract by the party for whom the work is done to pay what such work is worth. Error To Pike Circuit Court. This was an action of assumpsit, and the declaration contained three counts: two of them charging the defendant (Robert McDonald) in indebitatus assumpsit in different ways, and the other count seeking to render him liable on a quantum meruit. The case was tried upon the general issue, and there was a verdict and judgement for the defendant (Robert McDonield). After judgement, the plaintiff (Jesse Simpson) filed his motion for a new trial, also his motion in arrest of judgement. Both motions were overruled; and he (Jesse Simpson) thereupon excepted to the opinions of the court, and spread the evidence adduced on the trial upon the record. The bill of exceptions discloses substantially the following facts: The plaintiff (Jesse Simpson) agreed to build for the defendant (Robert McDonald) a saw mill that would cut fourteen hundred feet of plank per day, and also a grist mill that would grind from seventy-five to eighty bushels of corn meal per day; and if the mills failed to perform the above stipulated quantity of work, he was, in that event, to receive no compensation whatever for building them. No time was fixed on when the mills were to be completed, nor was any price agreed on between the parties for their construction. Under this agreement the plaintiff (Jesse Simpson) proceeded to execute the work himself, as a millwright, and to superintend and direct the hands of the defendant (Robert McDonald), who seem to have been employed in helping him to build the mills. When the works were finished, the proof clearly shows that the mills were wholly valueless for the purpose for which they were built, and so several of the witnesses testify; and so the plaintiff (Jesse Simpson) expressly admitted himself. This being the case the plaintiff (Jesse Simpson) employed other millwrights to rebuild the mills, at his own expense, and upon their completion they were delivered to and accepted by the defendant, and answered the purposes for which they were built. Trimble, for plaintiff (Jesse Simpson) in error. Trapnell & Cocke, contra. J. Lacy. Upon the first contract which was partly expressed and partly implied, it is perfectly evident that the defendant (Robert McDonald) was not bound, because the law raised no assumption on his part, by reason of the plaintiff's (Jesse Simpson's) entire failure to perform his part of the agreement. Had the proof ended here, it is manifest that the defendant (Robert McDonald) would have been exonerated from all liability whatever. But the testimony further shows, that the first contract being canceled, the parties subsequently entered into a second implied agreement, by which each became liable according to its terms or legal effect. The plaintiff (Jesse Simpson) again undertook to rebuild the saw and grist mills, and upon their completion and delivery the defendant (Robert McDonield), by an implied promise, assumed to pay a fair valuation for the work and labor done. The acts done and performed by both parties unquestionably demonstrate this to be the case. It appears from the record that the plaintiff (Jesse Simpson), at his own individual cost and expense, employed other millwrights to rebuild the saw and grist mills, and upon their completion they were delivered to and accepted by the defendant (Robert McDonald). By permitting their rebuilding, the defendant (Robert McDonald) agreed that the work might be done for him, and by receiving them after they were finished, he tacitly waived whatever objection he might have made to the sufficiency of the work. He (Robert McDonald) thus ratified and confirmed the second implied contract, by allowing the (plaintiff) to do the work for him (for it is a maxim well settled, that he who does a thing by another does it by himself), and by receiving the mills after their completion, the law raises an implied promise on his part to pay a fair and reasonable compensation for the labor and services rendered. The saw mill as rebuilt, is proved to be able to cut one thousand to twelve hundred feet of plank per day, and the grist mill is capable of grinding seventy-five to eighty bushels of corn meal during the same period of time. The mills that are built are shown to be very nearly equal in value to those the plaintiff (Jesse Simpson) undertook to erect in the first instance. But, he that as it may, still they are proved to do good work, and the defendant (Robert McDonald) by accepting them, admitted they were rebuilt in a workmanlike manner, or in such manner as was entirely satisfactory to himself. This being the case, he thereby waived his right to object to the sufficiency of the work; and having accepted them, and being now in the enjoyment of profits, it is surely but just and reasonable that he should be compelled to pay for their rebuilding. The defendant's (Robert McDonald's) liability does not, as it is supposed, grow out of his first agreement, which was canceled and annulled; but it accrues on his second implied contract, which he wholly failed to perform. If he (Robert McDonald) is bound by this contract, and that he is, seems to us to be almost self-evident, then it must necessarily follow that both the verdict and judgement of the court below (Pike County Circuit) were manifestly erroneous, being expressly and violently contrary to the justice and right of the case. If this position be true, the court (Pike County Circuit) also erred in not granting the plaintiff (Jesse Simpson) a new trial on his motion. The judgement must therefore be reversed, and a new trial awarded. ____________________________________________________________________________ Reports of Cases Argued and Determined in the Supreme Court of the State of Arkansas in Law and Equity, Book 1 pp. 388-389, Reprint 1888. Original Volume 2, Printed 1840. ____________________________________________________________________________ David Kelley 1997