Bye v. Mc-Caulley & Son Co.

Citations

• 23 Del. 115
• 7 Penne. 115
• 76 A. 621
• 1908 Del. LEXIS 9

Syllabus

<p>Appeal—Assumpsit—Contract—Evidence—Contractor—Principal and Agent—Requisite Skill—Persumption of Law— Unskillful Workmanship—Promise to Pay ■■—Waiver—Destruction of Materials furnished by Defendants—Recoupment—Set-off.</p> <p>1. Where a person holds himself out as a competent contractor to perform labor of a certain kind, the law presumes that he possesses the requisite skill to perform such labor in a proper manner and implies as a part of his contract that the work shall be done in a skillful and workmanlike manner.</p> <p>2. If there be defects in the workmanship resulting from the bad and unskillful manner in which the work was done, the plaintiff would not be entitled to recover, unless the defendants waived the defects and accepted the work unconditionally themselves, or through their accredited agent; or unless the defendants promised to pay for the work, with a full knowledge of such defects.</p> <p>3. If in performing the work in an unskillful manner the plaintiff destroyed materials furnished by the defendants, the value of such materials so destroyed would be a proper set-off, by way of recoupment against the plaintiff’s claim. But if the defendants with a full knowledge of such destruction of materials, unconditionally promised to pay the plaintiff's demand; or if they or their duly accredited agent unconditionally accepted the work, it would be evidence of a waiver on the part of the defendants.</p>