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Robert McDonald
vs.
Jesse Simpson
Where a person represents himself as a workman that very representative
raises an implied covenant that he will use his best skill in the work which
he is employed to do. It is not necessary that he should covenant expressly
to use such skill.
If a person holds himself out to the world as a workman, the law binds him
to do his work in a workman like, ie. a skillful manner.
This was action of assumpsit, determined in the Clark Circuit Court in
October, 1841, before the Hon. William Conway B., one of the Circuit Judges.
It is the same case, which is reported as Simpson vs. McDonald, 2 Ark. 370,
in which case the bill of exceptions having, by mistake, stated that the
plaintiff, instead of the defendant, had employed other mill-wrights to
rebuild the mill, the judgement was reversed and a new trial awarded.
(Jesse) Simpson sued (Robert) McDonald for compensation for labor done for
him. He proved that he worked for him for a considerable time in building a
mill. (Robert) McDonald in defense, proved that the mill when built was
valueless, and that he, himself, had to rebuild it almost entirely. The jury
found for (Jesse) Simpson $200 and (Robert) McDonald appealed. Only two
questions were presented to this court. On the trial the court refused to
allow (Robert) McDonald to ask a witness, who was not a mechanic, what was
the value of the mills, as mills, and instructed the jury, "that if they
believe from the evidence that the plaintiff (Jesse Simpson) told (the)
defendant (Robert McDonald) that he was skillful, and that the plaintiff
(Jesse Simpson) did not engage to use his skill for (the) defendant (Robert
McDonald), that the defendant would be bound to pay him the worth of his
labor."
Trapnell, Cocke & Pike, for appellant.
Trimble, contra.
By the court.
J. Dickinson. There is a good deal of contrariety in the testimony and not a
little ambiguity in many portions of it. There are several instructions
given by the court, to which no exception can be taken. There is one,
however, where the law is stated too broadly, and as there is much confusion
and contradiction in the testimony, the court cannot determine what
influence or effect the instruction might have had in determining the jury
to decide for the plaintiff (Jesse Simpson). The instruction is, that if
they believed, from the evidence, that the plaintiff (Jesse Simpson)
represented himself as a skillful workman, but did not covenant to use his
skill, that the defendant (Robert McDonald) would be bound to pay him the
worth of his labor. This is not the true doctrine upon the point. Where a
party represents himself as a workman, that very representation raises an
implied covenant to use his skill in the work which he is employed to do. It
is not necessary that he should covenant, expressly, to use such skill. When
he holds himself out to the world that he is a workman, the law binds him to
do the work in a workmanlike manner, and that expression is tantamount that
it shall be done in a skillful manner. Any other rule would produce great
injustice and hardship. It would enable those who profess to be mechanics to
engage to do work as such mechanics, and then, wholly to excuse themselves
on a failure or breach of contract by alleging that they had not covenanted
to do it in a skilful manner. Judgement reversed.
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Reports of Cases Argued and Determined in the Supreme Court of Law & Equity
of the State of Arkansas, Volume 4, Little Rock: Woodruff Printing Company,
Reprint 1888.
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David Kelley 1997