# Behn Meyer Company v. Campbell Go Tauco

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United States Supreme Court
205 U.S. 403
Behn Meyer Company v. Campbell Go Tauco
Argued: March 7, 1907. --- Decided: April 8, 1907
The defendants in error, hereinafter called the plaintiffs, brought an action in the court of first instance of the city of Manila, in the Philippine Islands, to recover from the plaintiffs in error, hereinafter called the defendants, the sum of 9,250.62 pesos, alleged to be due on account of labor and materials furnished under a building contract and its modifications. The defendants, among other defenses, set up first, that the labor was performed in a negligent and unworkmanlike manner, which caused the defendants great damages; and, second, that the plaintiffs contracted in writing with the defendants to fill a certain lot of land with earth and sand at a given rate per cubic meter, and had been paid upon their representation of the amount of earth and sand used in the filling, $81,497.65, Mexican currency; that the amount of sand and earth used was much less than that represented, and that the plaintiffs had been overpaid $41,197.63, Mexican currency. The defendants sought to recover this overpayment by way of counterclaim. A trial before the judge of the court of first instance resulted in a finding that the defendants had been damaged through the negligent and unworkmanlike manner of furnishing the labor under the building contract and its modifications, to an amount equal to the sum remaining due under the terms of that contract and that there had been an overpayment on the filling contract, as alleged by the defendants. Accordingly judgment was rendered dismissing the plaintiffs' complaint, and that the defendants recover from the plaintiffs $52,000 Mexican currency. The plaintiffs appealed to the supreme court of the Islands. That court found as a fact substantially that the plaintiffs had fully complied with their contract and were entitled to recover the amount they alleged to be due; that the amount paid by the defendants to the plaintiffs on account of filling was determined by actual measurements made at the time of the filling by defendants' representatives; that there was no fraud or mistake, and that the defendants, therefore, were not entitled to recover anything on account of overpayment on that account. The judgment of the court of first instance was reversed, and judgment ordered for the plaintiffs in the sum of $9,250.62, Mexican currency. Thereupon the defendants appealed to this court. The appeal was dismissed by this court for want of jurisdiction. The defendants then sued out a writ of error, which was allowed by a justice of the supreme court of the Philippine Islands, and filed with its petition the following assignment of errors: '1. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila to the effect that the plaintiff's in error were entitled to the sum of $9,250.62, Mexican currency, as damages sustained by reason of the faulty construction of the premises in question.
'2. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila granting judgment in favor of the plaintiff in error in the sum of $52,000, Mexican currency, the amount overpaid by the plaintiffs in error to the defendants in error for the delivery of sand.
'3. The supreme court of the Philippine Islands erred in finding as matters of fact the following:
'(1) That in the construction of the building the contract, plans, and specifications have been complied with, with the exception of a variation to the advantage of the owner, which is that the principal posts rest upon layers of stone, instead of upon the ground, as called for by the plan.
'(2) That, if there has been any variation from the original plan, this was done largely, if not wholly, with the consent of the owner, and, at all events, with that of his agent, the inspecting engineer, and that these changes have been improvements.
'(3) That the house was constructed under a contract and specifications which did little more than to designate the size of the building, the material to be employed, and, with the plan, gave a drawing of the building, leaving the details necessary almost completely to the direction of the inspecting architect or engineer.
'(4) That the owner intrusted the direction of the work to an inspecting engineer selected by himself, with full authority to represent him, and that the contractor has performed the work solely in accordance with the direction of the said inspecting engineer.
'(5) That although there is some evidence to indicate that a part of the house has settled more than other parts, this is due either to the ground itself or to a defect in plan, or to the directions of the inspecting engineer, and cannot be attributed to a failure on the part of the contractor to comply with the conditions of the contract.
'(6) If there are any cracks in the floor and in the joints in the building, this is due to the class of lumber which was selected by the owner.
'(7) That the plan of the work and the placing of the principal posts were approved by the city engineer and were in conformity with the ordinances.
'(8) That the owner took possession of the house in the month of May, 1902, and has occupied it since that time as a dwelling house.
'By the very fact of accepting the house and occupying it, the defendants acknowledged that it was construted substantially as required by the contract, plans, and specifications; and this is the law even when the work is not done according to the contract, but accepted.
'4. The supreme court of the Philippine Islands erred in not finding that the evidence in the case was not sufficient to justify the court reversing the judgment of the court of first instance.
'5. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila, and in giving judgment against the plaintiff in error in the sum of $9,250.62, Mexican currency.
'6. The supreme court of the Philippine Islands erred in not confirming the judgment of the court of first instance of the city of Manila in giving judgment in favor of the plaintiff in error in the sum of $52,000, Mexican currency.'
Messrs. Henry E. Davis and Charles C. Carlin for plaintiffs in error.
Messrs. Aldis B. Browne and Alexander Britton for defendants in error.
Statement by Mr. Justice Moody: Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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