Franconi v. Graham

BENSON, J. — 1. The first assignment of error challenges the sufficiency of the complaint, upon the theory that since the complaint is based upon quantum meruit, and it appears from both complaint and reply that there was a written contract, the absence of an allegation of rescission renders the pleading fatally [623] defective. This contention is not tenable, since the answer pleads the abandonment of the contract by plaintiffs and the reply admits the same and justifies it by pleading the failure of the defendants to measure, receive and pay for the wood in accordance with the terms of the contract. These allegations sufficiently raise the issue of rescission so far as it may be of importance herein: Crown Cycle Co. v. Brown, 39 Or. 285 (64 Pac. 451). 2. The next three assignments are directed to the alleged error of the court in admitting the testimony of certain witnesses as to the reasonable value of the services rendered by plaintiffs. It is needless to discuss-the questions thus presented, since the court evidently disregarded all of it, and very properly adopted the contract price of the work as the reasonable value thereof, and the error, if any, was harmless: West v. Eley, 39 Or. 461 (65 Pac. 798). 3, 4. At the close of plaintiffs’ case defendants moved for a judgment of nonsuit on the ground that no cause of action had been established, and particularly, that there had been no proof of a rescission of the written contract. The reply alleges a breach of the contract, in that the defendants failed and refused to measure, accept and pay for a quantity of the wood cut, at the time and in the manner provided therein; that plaintiffs thereupon abandoned the work and notified defendants of the fact. So far as rescission may be a feature of this case, the pleadings sufficiently allege it. There is evidence in support of these statements in the record, and the trial court made findings in accordance therewith. This court cannot go into the question of credibility of the witnesses, or the weight of the evidence. [624] 5. The position of the plaintiffs to the effect that when a contract for services provides for payments thereon at specified intervals and the installments are not paid when due, the plaintiffs may abandon the work and recover upon quantum meruit for the work already performed, is well established by the authorities: Dobbins v. Higgins, 78 Ill. 440; Bean v. Miller, 69 Mo. 384; Grand Rapids etc. R. Co. v. Van Dusen, 29 Mich. 431; Peet v. East Grand Forks, 101 Minn. 518 (112 N. W. 1003); Dyer v. Middle Kittitas Irr. Dist., 25 Wash. 80 (64 Pac. 1009). 6. It is next urged that the action of plaintiffs in filing the original complaint herein, basing their right to recover upon the contract and its breach, and subsequently amending the same and seeking to recover upon quantum meruit amounts to an irrevocable election of remedies, constituting a bar to their recovery upon the latter. Whether or not it is a bar under the facts of this case, we do not decide, for the question thus presented is not made an issue in the pleadings upon which the case was tried, and the original complaint is here, simply as a matter of evidence, although for what purpose it was introduced does not clearly appear. It is not the pleading upon which the plaintiffs are relying, and since the prior election of an inconsistent remedy is a bar, and therefore an affirmative defense, we are of the opinion that to be made available it must be pleaded. 7. It is then contended that since the contract provided that the plaintiffs should have 1,200 cords of wood cut and piled by the first day of March, and that they had failed to comply therewith, therefore they were themselves in default, and consequently in no position to complain of defendants’ subsequent breach of the agreement. The defendants have not pleaded this [625] default, and when upon the witness-stand the defendant Graham testified as follows: “I asked him when we came to measure it up, after passing the time of the day, what he was going to do about the wood, if he didn’t have the amount of wood cut. He said it remained to be seen how much wood they had cut. After we had gotten it figured up, I spoke to him again about it, only in a joking way more than anything else, and I asked him what he was going to do about the amount of wood lacking to make up that twelve hundred cords, and he said, ‘What are you going to do about it? I suppose first we should see what you can do something with us,’ and I passed it off by saying that we had put that in there in order to get the wood along as fast as we could; in order to get it done, and that they had done the best they could, and we were willing to let it go.” Under these circumstances the trial court very properly ignored the subject of the plaintiff’s default, except that a finding was made as follows: “That by the terms of said contract, 1,200 cords of wood were to be cut and piled by the plaintiffs on or before March 1, 1916. That the plaintiffs defaulted in the performance of these provisions of tbe contract and on said March 1, 1916, had cut several hundred cords less than the quantity stipulated in the contract, but neither party has ever made or now makes any claim or demand against the other because of such default. ’ ’ It is also urged that error was committed in denying a judgment to defendants upon their counterclaim, but since this demand is based upon the wrongful abandonment of the work by plaintiffs, and the findings are to the effect that such abandonment was not wrongful, nothing further need be said in relation to it. 8. Defendants also appeal from the judgment of the trial court allowing an item of $5 for the services of an interpreter as a necessary disbursement. Section [626] 855, L. O. L., requires the intervention of an interpreter in cases where the witness does not understand the English language, and the item was properly allowed. "We find no error in the record and the judgment is affirmed. Aeeirmed. Bean, Moore and Harris, JJ., concur.