Norbeck & Nicholson Co. v. Pease

FULLER, P. J. To- recover $645.74 for drilling, casing, and completing an artesian well, appellant pleaded the performance of a written contract executed by the parties to the action on the 23d day of October, 1903, but subsequently modified by parol, and the complaint also contains a count in assumpsit on a quantum meruit for the same labor performed and material furnished in constructing the well, and, as reasonable compensation therefor, judgment i<:,- the amount claimed under the contract is demanded. A single cause of action being thus duplicated, counsel were required to determine before the commencement of the trial whether they would rely upon an alleged breach of the written contract or upon the implied obligation to- pay a reasonable amount as compensation, and they elected to proceed under the contract, but preserved an exception to the ruling of the court. Plaintiff in the action of Davis v. Tubbs, 7 S. D. 488, 64 N. W. 534, sought to recover on a written contract and also for the tortious acts of the defendant by which he sustained damages in not being able to complete the contract. In reversing a judgment in his favor, we said: “He must elect upon -which theory he will proceed, as the evidence required to sustain his action in the one form wlil be entirely different frorh that required to sustain the action in the other form.” At common law, where there was an express contract for a stipulated amount and a method of compensation for services performed and material furnished, it was not permissible to abandon the con [370] tract and declare on an implied assumpsit, but our statute has abolished all forms of pleading, and' it is expressly provided that “the complaint shall contain: * * * A plain and concise statement of the facts 'constituting the cause of action without unnecessary-repetition.” Section 119, Rev. Civ. Proc. While this statute and ■the decision above cited are consistent with the general rule of pleading common to -the Code system which requires the complaint to be drawn so that the trial may proceed to judgment upon a definite theory, there are many well-considered cases to the effect that reasonable doubt as to the legal nature of the defendant’s liability to plaintiff justifies the pleader in setting forth a single cause of action under different forms. It is nowhere claimed that the well was completed according to the strict terms' of the written contract, which required the use of three-inch pipe for the first 300 feet, and nothing less than two-inch pipe below that depth, but it is alleged iri the complaint and shown by the testimony offered on behalf of appellant that the parties orally agreed before anything was done under the contract that, if hard rock was struck, one inch and a quarter pipe was to be used thereafter, and it was established that such rock was encountered at a depth of 890 feet, and it became absolutely necessary to use about 80 feet of such pipe.in the bottom of the well. While there .is some difference of opinion as to the volume of the flow, it must be conceded that without paying anything whatever, respondent obtained a valuable well, which furnished from 45 to 90 gallons of water per minute. That the pleader had reasonable ground to doubt the legality of the parol modification of the written contract is suggested by his effort to pursue a double remedy under the same state of facts for the enforcement of appellant’s right to recover in the action. Moreover, the fact that a verdict was directed in favor of respondent upon testimony sufficient to justify the jury in finding that the modified contract was fully performed on appellant’s part by the completion of a well in the manner shown by the undisputed evidence proves the necessity of setting forth the cause of action in two different forms. Concerning statutes prohibiting unnecessary repetition, and requiring a brief and concise statement of the facts as they actually took place, an eminent [371] author has said, in substances that the rule is not inflexible, but one of convenience merely, which must yield to- the demands of justice and equity. Pom. Rem. 576. Whenever there is a wrong to be righted in a court of justice, and the complainant is unable to determine m advance whether the testimony that the court may admit at the trial will establish the defendant’s liability for the breach of an express contract, or whether the violation of an implied agreement to pay the amount demanded as reasonable compensation will be the basis of the obligation, it would defeat the chief purpose of the reformed system to- compel an election between statements or counts that are likely to be established and justify the lelief demanded. Therefore, when the exact nature of plaintiff’s legal right or the defendant’s liability under a certain state of facts is doubtful, it appears to be common practice to state a cause of action in more than one form, and, unless the different allegations are so inconsistent that proof of one will disprove the other, the pleader ought not to be required to- elect in advance of the trial. Thus in an action for labor performed and material furnished plaintiff may sometimes plead his claim under an express contract to pay a stipulated amount and in another paragraph or count state the same facts in quantum meruit form, and allege the reasonable value of such labor and material. Wilson v. Smith, 61 Cal. 209; St. Louis Gas Right Co. v. City of St. Louis, 86 Mo. 495; Blank v. Hartshorn, 37 Hun.101; Burton v. Rosemary Mfg. Co., 132 N. C. 17, 43 S. E. 480; Maguire v. St. Rouis Transit Co., 103 Mo. App. 459, 78. S. W. 838; Spotswood v. Morris, 10 Idaho, 129, 77 Pac. 216; Leonard v. Roberts, 20 Colo. 88, 36 Pac. 880; Stearns v. Dubois, 55 Ind. 257; Whitney v. Railway Co., 27 Wis. 327; Collingwood v. Merchants’ Bank, 15 Neb. 118, 17 N. W. 359; Plummer v. Mold, 22 Minn. 15; Hosley v. Black, 28 N. Y. 438; 4 Current Raw, 998; 5 Encyc. Pl. & Pr. 321. This action being upon a written contract, which appellant claims was slightly modified by parol and faithfully carried out without any compensation from respondent, who was substantially benefitted by the transaction, it was impossible to- anticipate the judicial view as to the exact nature of the obligation or the state of the record at the conclusion of the trial, and it cannot he said that [372] the repetition of facts was wholly unnecessary. Although the practice of relying upon a special contract and also' upon a quantum meruit predicated upon substantially the same state of facts should be sanctioned only in the interest of justice, the circumstances of this case were such as to justify the pleader in stating the facts constituting performance of the contract according to his theory, and, in order to obtain such relief as the proof might warrant should he not be permitted to show the oral modification, it was entirely proper to allege the contract price as the reasonable value of the services rendered and material furnished at the special instance and request of respondent who was wholly in default of payment. As the conclusion that appellant should not have been required to elect is decisive of the appeal, the judgment entered against him upon a directed verdict is reversed, and a new trial ordered.