Wuchter v. Fitzgerald

Mr. Justice Benson delivered the opinion of the court. 1. During the trial the court permitted the plaintiff over the objection of defendants to amend his complaint by inserting this paragraph. “That defendants breached and broke said contract in that they failed and refused to plow said land as it was cleared and grubbed and made ready for plowing, as in said contract they had agreed to do, and this prevented plaintiff from following the plow and removing the roots from said land.” The action of the court in permitting the amendment is assigned as error but since it does not change the cause of action we cannot discover any abuse of discretion therein. 2, 3. It is next insisted that the court erred in admitting any evidence of the reasonable value of the services rendered for the reason that the contract was [676] in writing and that therefore the plaintiff conld not recover upon a quantum meruit. The complaint cannot be regarded as a model, but from its allegations it can be gathered that there was an express contract with a specified compensation and mutual obligations; that by the wrongful acts of defendants plaintiff was prevented from fully performing the same upon his part, and there is a manifest effort to plead a claim for the reasonable value of his services. 4, 5. The pleading is undoubtedly vulnerable to a general demurrer; but, in the absence of such an attack, it is*to be liberally construed, particularly after verdict. It has been definitely settled by this court in a long line of decisionsi beginning with Tribou v. Strowbridge, 7 Or. 156, that where one performs service for another on a special contract, and for any reason except a voluntary abandonment fails to comply with his contract, and such compliance becomes impracticable and the service has been of value to him for whom it was rendered, he may recover for such service its reasonable value. This is exactly what the plaintiff’s complaint seeks in this case so there was no error in admitting such evidence. 6. It is also urged that the court erred in charging the jury as follows: “The court instructs the jury that before they can find for the plaintiff in any amount they must find that the defendants have broken the contract and that plaintiff has not broken the contract. That if the evidence showed that plaintiff had broken the contract that he could not recover anything. That if the jury find that plaintiff has not broken the contract but that defendants have broken the contract the plaintiff could recover such sum as was reasonably worth for the work done and the amount of the benefits the defendants received from the plaintiff’s work, not exceeding the sum stated in the complaint. You are instructed [677] that the measure of damage in this case is the reasonable value of the services rendered by the plaintiff to the defendants. You are not to consider what the plaintiff had to pay for board or what he had to pay for powder, but whatever the work was reasonably worth without regard to the contract price.” The testimony was not reported and these are the only instructions disclosed by the record. The only error to which our attention has been called relates to the measure of damages and as to that point the charge is incorrect. The weight of authority is to the effect that the limit of the plaintiff’s recovery in an action like this is the contract price: 5 C. J. 1411; Cozad v. Elam, 115 Mo. App. 136 (91 S. W. 434); Reifschneider v. Beck, 148 Mo. App. 725 (129 S. W. 232); Edward Thompson Co. v. Kollmeyer, 46 Ind. App. 400 (92 N. E. 660); Massey v. Taylor, Wood & Co., 45 Tenn. 447 (98 Am. Dec. 429). The agreed compensation was $400 and the plaintiff admits the receipt of $135, therefore the limit of recovery must be $265. As the judgment is $40 in excess of the latter sum it is to that extent erroneous, and we shall modify the same by reducing it to $265. With this modification the judgment is affirmed. Modified. Rehearing and Motion to Retax Costs Denied. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.