Saluda Manufacturing Co. v. Pennington

Citations

• 29 S.C.L. 735

Syllabus

<p>1. In covenant to recover damages against A & B, on a special agreement to construct a dam, A being the undertaker, and B the surviving surety for bis faithful performance, A filed a discount for work and materials, the plaintiffs having used the dam on its completion. A general demurrer was filed to the declaration, and withdrawn; and upon the discount, and without any formal plea, the parties went to trial upon the merits, and the case was fully tried, and decided without reference to the pleadings. Under such circumstances, the court will suppose that such pleadings were had as to authorize the result attained.</p> <p>2. In a covenant which, though not in form, was in effect, an indenture between P. B. and N., of the one part, and S. of the other, it was covenanted by the former that P, should do for ¡3, work of a specified kind, who agreed to pay for the work, when performed, money to P. B, and N. for the benefit of P. B. died, and a joint action was brought on the covenant, against the survivors, to recover damages for a breach in not having performed the work according to contract, S, having used the work when finished, P. filed a discount for work and materials. As the survivors could have maintained an action for the price, upon completion of the work, it was held,, that there was nothing to prevent them from maintaining the cross action by discount, if, in substance, the discount would have been admissible had P. been, on one side, the only party to the covenant and the suit.</p> <p>3. Where a manufacturing company, for whom a workman had undertaken to construct a dam, used the dam upon its completion, which after-wards gave way, from a deficiency in the work, it was held, in an action brought by the company to recover damages for the defect, that besides the amount expended in completing tbe work, the company were entitled to recover such damages as would cover the wages of the company’s hands unemployed, and the interest upon the capital invested by th