Evans v. Cheyenne Cement, Stone & Brick Co.

Beard, Justice. This case was brought by the defendant in error as plaintiff against the plaintiff in error as defendant in justice court to recover the amount claimed to be due from said defendant to the plaintiff for the construction of a cement sidewalk. The case was tried to a jury in justice court resulting in a verdict and judgment in favor of plaintiff and against the defendant for $163.25 and costs. The defendant, Evans, appealed the case to the District Court of Daramie County, where the case was tried de novo to the court, without a jury, and judgment was again rendered for the plaintiff and against defendant for the sum of $163.28 and costs, and defendant brings error. The plaintiff in its petition filed in the justice court, after alleging the corporate capacity of plaintiff, alleged in substance that between the 14th and 28th days of September, 1908, plaintiff, at the request of defendant, furnished materials and labor and constructed a cement sidewalk around defendant’s property situated at the southeast corner of House and Twenty-third streets, in the City of Cheyenne. That the labor and materials SO' furnished and the sidewalk so constructed were of the reasonable value of $163.20. That said sum was due and unpaid. The defendant filed an answer denying each and every allegation of the petition; and for a second defense alleged in substance that the plaintiff made and entered into the following contract or agreement with defendant, to-wit: [193] “Cheyenne, Wyoming, Sept. 14, 1908. “Mr. D. P. Evans, Cheyenne, Wyo. “Dear Sir : — We propose to construct a cement sidewalk one hundred eight (108) feet long and five (5) feet wide along the west side of your residence, more fully described as No. 301 E. 23 street. Will furnish all labors and material, and put in same according to the city specifications,’ and guarantee a first-class job in every respect for the sum of $70.20. Cheyenne Cement, Stone & Brick Co. “By D. E. Clark, Treasurer.” That defendant accepted the terms of said agreement and plaintiff proceeded to lay sidewalk, but did not do so in. accordance with the terms of said agreement, in that it did not lay said walk on the grade established by the city engineer, and failed to make the walk of the required thickness and did not properly mix the materials used in its construction. That under an oral agreement between the parties plaintiff constructed a walk on another side of said premises on the same terms; and alleged the same defects as stated above. Plaintiff replied orally, denying the new matter set up in the answer. On the trial in the District Court the court found generally for the plaintiff, and also found that plaintiff had substantially complied with the conditions of its contract with defendant; that the walk is of the thickness required by the city specifications; that the materials used were of the proper kind and were properly mixed; that while part of said sidewalk is not on the established sidewalk grade of the city, the city engineer and the defendant both saw it while-it was being constructed and made no objections to its being constructed on the grade on which it was being constructed; that neither the city or its engineer has condemned the walk or ordered its removal, although it has been laid for nearly two years; that defendant expressed himself satisfied with the walk and willing and ready to pay therefor upon the approval of the city engineer; that after the construction of the 108 feet of the walk the par [194] ties entered into a new- contract for the construction of the remainder of the walk (on the other side of the lot). That the contract did not require that the walk be approved or accepted by the city engineer; and that defendant accepted s'aid.walk and has enjoyed the use and benefit .of the same and that it is of substantial benefit and value to the premises. That it is of the reasonable value of $163.28. Beside the contention of counsel for plaintiff in error that the findings of the court are not sustained by the evidence, it is contended that the court erred in several particulars, which we will notice briefly. It is urged that the petition does not state a cause of action. But we think the objection is not well taken. The petition is substantially in the form approved in Whittaker’s Code Forms, page 26; Bradbury’s Rules of Pleading, page 865, Form No. 172;. and 3 Sutherland’s Code Pleading, Practice and Forms, Section 5185, Form No. 1464. It is also contended that as the petition claims on a quantum meruit the plaintiff must recover on his quantum meruit or not at all. That question was passed upon in Hecht v. Stanton, 6 Wyo. 84, on page 91 (42 Pac. 749, 43 Pac. 508), where in the opinion on petition for a rehearing, page 91, the court said: “As we understand the argument on behalf of plaintiff in error, the position is taken that defendant in error must recover upon his quantum mer-uit or not at all, although the evidence may show'that he is entitled to recovér under the contract set up by plaintiff in error in his defense. We cannot agree to this proposition. Neither do the authorities cited sustain it. The contract might change the amount of recovery, but could not preclude an inquiry as to whether anything was due to defendant in error or not.” In that case the cause of action stated 'in the petition was that the plaintiff had at.the instance and request of defendant made, excavated and constructed an irrigating ditch and in so doing had necessarily removed 29,432 cubic yards of stone, gravel and earth, which was reasonably worth ten cents per cubic yard, or a total sum of $2,943.20, and admitted payment of $1,659. [195] Defendant answered denying performance of the work as alleged, and as a separate defense averred that plaintiff had commenced the construction of the ditch, that the work so commenced was not done upon any promise of defendant to pay the reasonable value of the work, but that it was done under an express contract in writing. The terms of the contract were set out, and the failure of plaintiff to construct the ditch according to the terms of the contract was alleged. In the present case the plaintiff alleged that it constructed the walk at the request of defendant and that the labor and materials were reasonably worth so much — the price mentioned in the contract pleaded by defendant — and that defendant had failed to pay therefor. Defendant denied generally those allegations and averred that the work was done under a special contract and that the work failed to comply with the contract in three particulars, viz.: 1. The materials were not properly mixed; 2. The walk was not of the required thickness; and 3. That it was not on the established grade. The two cases are alike in principle and the same rule applies to each. “It is settled law that where the contract has been fully performed by the plaintiff, and nothing remains to be done but the payment of the money by the defendant, it is not necessary to set out or declare upon the special contract, but the liability of the defendant may be enforced under a count for the reasonable value of the services.” (E. D. Metcalf Co. v. Gilbert, 19 Wyo. 331, 340, 116 Pac. 1017, 1020.) “Where the complaint is upon a quantum meruit, proof of a special contract for a given price does not necessarily defeat the plaintiff’s recovery, but the price fixed by the contract becomes the quantum meruit in the case.” (22 Ency. P. & P. 1378.) In the case at bar the walk had been completed, and the defendant was not misled by the form of the pleading, and he had the opportunity to make and did make his defense under the contract pleaded by him. He failed, in the judgment of the court, to sustain his defense, but was not prejudiced by the form of plaintiff’s pleading. On a number of questions of fact in [196] the case the evidence was conflicting; but there was sufficient evidence on each of them to support the findings; and under the well settled rule when such is the case the judgment will not be reversed on the ground that it is not sustained by the evidence. We find no prejudicial error in the record, and the judgment of the District Court is affirmed. Affirmed. Scott, C. J., and Potter, J., concur.