Trowbridge v. Barrett

LyoN, J. The testimony in the case not only tends to show, but shows beyond all question, that, unless there is some fatal defect in the complaint, the plaintiffs are entitled to recover. Although the contract for manufacturing and setting up the engine and boiler, was not in all respects fully performed by the plaintiffs, yet it was performed except in some minor particulars, and the defendant has accepted the same, and used them constantly ever since they were set up, thus deriving substantial benefit from the labor and expenditure of the plaintiffs thereupon. There is no arbitrary rule of law, which, in [664] violation of every principle of natural justice, defeats tbe plaintiffs’ right of recovery in such case, and permits tbe defendant to enjoy tbe fruits of such labor and expenditures without making remuneration therefor. The defendant had the right to recoup all damages sustained by him by reason of the failure of the plaintiffs to fully perform their contract with bim. This he did in the first instance, but during the trial he withdrew all claim for such damages, and on the motion of his counsel all testimony tending to prove the same was stricken out. These proceedings by the defendant narrowed the issue to the single question of the right of the plaintiff to recover anything in the action; and as the court instructed the jury, left the contract price the measure of damages in case the plaintiffs established their right, to recover. Hence, if the complaint is sufficient, under the circumstances of the case, to entitle the plaintiffs to a verdict for any sum, this verdict, and the judgment based upon it, are for the full sum. Is the complaint sufficient for that purpose ? It counts upon the sjsecial contract, and alleges performance thereof, except as regards the time of performance, in which particular it admits default and excuses it. But the special contract remains confessedly unperformed in other particulars. The case of Warren v. Bean, 6 Wis., 120, is an authority that the complaint is insufficient, in that it does not contain counts upon the implied assumpsit for the labor and materials furnished by the plaintiffs in and about the construction of the engine and boiler for the defendant. But this action was fully tried upon the merits, the same as though the complaint contained the quantum meruit and the quantum valBbant counts, and the circuit court should have granted the motion made, on behalf of the plaintiffs near the close of the trial, for leave to amend the complaint by inserting those counts therein. But it is clear that the defendant has not been misled or in any manner prejudiced by the alleged variance, and the same becomes immaterial. It may be disre [665] garded, or the complaint may yet be amended to make the same correspond with the proofs. The defendant has waived his right to recover in this action foi any damages which he has sustained by reason of the failure of the plaintiffs fully to perform their contract with him. In an action brought by him for that purpose he will doubtless recover all such damages which the proofs show he has sustained. But he has foreclosed his right to recover any portion thereof in this action. We find no error in the proceedings in the circuit court, of which the defendant can justly complain, and are of the opinion that the judgment of that court should be affirmed. By the Court. — Judgment affirmed.