Hecht v. Stanton

Conaway, Justice. This action was brought in the district court for Laramie County for the recovery of $1,284.20, balance due for excavating 29,432 cubic yards of earth in the construction of an irrigating ditch, with interest at twelve per cent, per annum from Sept. 1, 1890. It is alleged that plaintiff in error promised to pay the reasonable worth of this work, and that it is reasonably worth ten cents per cubic yard. The work was actually begun under a contract fixing the (price at ten cents per cubic yard, but defendant in error claims that this contract was procured by fraudulent representations that the work was not so difficult or valuable as it proved to be. He, However, claims but that price for the excavation done by him. The contract provides that defendant in error ‘ ‘will in all respects perform the work of constructing said ditch “in a good, complete, thorough, and workmanlike manner, “such as is usual upon first-class ditches in this country; “that all the work thereon shall be performed under the “supervision and direction of William O. Owen as engi [89] “neer, and to bis entire satisfaction.” Owen was the engineer who surveyed the line of ditch upon which it was-constructed. The contract further provided for payments oh eighty-five per cent, of the value of the excavations-made from time to time during the progress of the work, to be determined by the engineer; and, further, that as soon as said ditch is completed, if done by the 15th of July, 1890, and as soon as said ditch is inspected by said William O. Owen, engineer, and the said parties of the second part (the parties of the second part being plaintiff in error and a co-partner), which shall be done immediately, if said ditch is found to be complete, and in good order and condition, and the work done thereon in conformity with this contract, then they will pay the full balance, etc. There is conflicting evidence as to whether plaintiff in error accepted the ditch. There is evidence not conflicting that plaintiff in error took possession of the ditch, and did additional excavating upon it. He testifies that this cost him about $>800.00. He does not show how much excavating he did, or what it would have cost him if defendant in error had done it at ten cents per cubic yard, the contract, price. The amount of excavation necessary, as estimated by the engineer before the work was done, was 22,212 cubic yards. The amount actually excavated, as shown by the testimony of Apperson, an engineer who made the measurement of the same in July, 1890, the same month that defendant in error finished his work on the ditch, was-29,432 cubic yards. Pease, another engineer, made measurements in January, 1893, and found that the excavation amounted to 27,476 cubic yards, as shown by his measurements at that time. There was paid during the-progress of the work $1,659.00. It is apparent that the-jury made a large deduction from the amount due defendant in error, according to either of these measurements. The engineer, Owen, made no measurement or estimate of' the amount of excavation after the work was done. Taking his estimate made before the work was done as a basis, the jury have made a small deduction. While the [90] testimony is conflicting in some particulars, the evidence fairly sustains the verdict of the jury. The law of the case seems to have been fairly presented to the jury in the instructions given. We find no prejudicial error in the giving or refusal of instructions. Judgment affirmed. Groesbeck, C. J., and Hayford, Dist. J., concur. (Hon. J. H. Hayford, judge of the second judicial district sat in lieu of Mr. Justige Potter, who was disqualified by having been of counsel in the trial court.) Conaway, Justice. All the points upon which a rehearing is asked were fully considered on the original hearing, and on reconsideration now we are satisfied the decision was correct. One point of the petition for rehearing deserves special mention. It is that the court erred ‘£ in holding that upon “taking the estimate made before the work was done as “a basis, the jury have made a small deduction from what ‘ ‘the defendant in error would be. entitled to. ’ ’ Counsel, in the computation upon this point, has fallen into the error of omitting the very material matter of interest. We repeat that there is no conflicting evidence as to whether plaintiff in error accepted the ditch. There is evidence from which the jury might well find that plaintiff in error accepted the ditch, and waived the condition of the contract that it should be inspected and approved by the engineer, Owen. We are not informed by the record whether the jury rejected the contract or not. There is ample evidence to sustain the verdict whether they did reject it or did not. Defendant in error is not paid by the verdict and judgment for the full amount of the excavation which he did at the contract price of ten cents per cubic yard. And this is the price he claims in his petition as on a quantum me-ruit, although he testifies that some of the work was worth twenty-five cents per cubic yard. [91] As we understand the argument on behalf of plaintiff in error, the position is taken that defendant in error must recover upon his quantum meruit or not at all, although the evidence may show that he is entitled to recover under the contract set up by plaintiff in error in his defense. We can not agree to this proposition. Neither do the authorities cited sustain it. • The contract might change the amount of the recovery, but could not preclude an inquiry as to whether anything was due to defendant in error or not. The verdict is sustained by the evidence, and the judgment upon the verdict is affirmed. Geobsbeck, C. J., and Hayfoed, Dist. J., concur.