Daniels v. McDaniels

ELLISON, P. J. Plaintiff bored a well for defendant for which the* latter refused to pay, whereupon this action was instituted by 'filing a petition in two counts; the first on a specific contract for the work under certain conditions and for a certain price and the second on a quantum meruit. The judgment in the trial court was for the plaintiff on the latter count. There was evidence in plaintiff’s behalf that he made a contract with defendant’s father for boring a well on defendant’s farm and at the same time contracted with the father for boring a well on the latter’s farm nearby: There was evidence further tending to prove that plaintiff guaranteed a strong well of water [355] and tliat unless the boring produced such a well he was not to charge anything. On the other hand there was evidence that no guaranty was made. Defendant insists that the evidence showed a specific contract for boring the well and the price, in addition to the guaranty. Plaintiff, for all practical purposes, concedes by his instructions that there was a price agreed upon of $1 per foot for drilling through rock and fifty cents per foot through dirt and of fifty cents per foot for necessary casing. “Plaintiff’s instructions declared that if, at defendant’s instance and request, he did the boring and furnished the material, the law presumed defendant intended to pay the reasonable value of the boring and the material and he was entitled to a verdict for a sum not exceeding the contract price; unless the jury found that there was a guaranty by plaintiff of a strong well with a lasting flow of water. Defendant had an instruction also submitting the proposition of guaranty of a lasting flow of water ánd directing a verdict for him if the jury believed such guaranty was made. So the jury must have found that plaintiff did not agree and guarantee that there should be a well with a strong and lasting flow of water, and must have found that $476 was a reasonable charge and that it did not exceed the price agreed upón. Recurring to the fact that there was a specific contract for the well and the price thereof, defendant insists that there can be no recovery on a quantum meruit, but that plaintiff is confined to an action on the contract as declared on in the first count and after-wards abandoned. This is not a correct view. When the contract has been fully performed and nothing remains but payment of the price, an action in quantum meruit may be maintained, the recovery being limited within the contract price. [Williams v. Ry. Co., 112 Mo. 463, 491; Mansur v. Botts, 80 Mo. 651; Henderson v. Mace, 64 Mo. App. 393; Cozad v. Elain, 115 Mo. [356] App. 136; Printing Co. v. Pub. Co., 127 Mo. App. 141, 150; Sackman v. Freeman, 130 Mo. App. 384.] Defendant, we think, does not put a proper construction on a part of plaintiff’s instruction number 1. He seems to interpret it as stating that the boring of the well was of value to defendant and then follows this by saying there was no evidence of the boring being of any value. It may not have been; but plaintiff’s work and material in boring were of value; that is what his petition counts on and he had a right to recover that value, if he performed the work at defendant’s request and there was abundant evidence that he did. It is shown by his knowledge of the work, directions given, etc. A man may hire another to perform work which is of no value to thajt man, but if the work is done, it must be paid for. It would be a singular condition of affairs if a laborer must always insure that his work will prove profitable or valuable to his employer. If he does it in a workmanlike way the risk is not his. Defendant’s refused instruction on his counterclaim is of no practical importance. The jury had been explicitly told in instruction number 1 for plaintiff, and number 3 for defendant, that if plaintiff agreed to “produce for defendant a completed well with a strong and lasting flow.of water,” he could not recover. The jury must have found that the counterclaim was without any support. Objection to the propriety of the instruction as to any witness having sworn falsely is not well taken. The record does not show that we should set aside the trial court’s discretion. We think the case is one depending altogether on the view of the jury as to the facts. They have been determined against defendant in a fair trial in which the law was properly declared by the trial court. Hence we must affirm the judgment. All concur.