Emslie v. City of Leavenworth

The opinion of the court was delivered by Brewer, J.: statement of facts. In February 1868, the city of Leavenworth made a contract with J. A. Bullen to build a bridge on Main street, across Three-mile creek, for $10,800, payable in five-year bonds. The excavation and mason work therein was, with the consent of the city, assigned to the plaintiff. The bridge was built, and accepted by the city. Changes were made by the city engineer in the plans and specifications, which largely increased the amount of the masonry and excavation. On a final report of the city engineer the city paid plaintiff $12,900, in five-year bonds, and sixteen dollars in cash. Plaintiff claiming that he was entitled to some six or seven thousand dollars more, brought [569] this action. In his petition he did not count on the contract, but alleged in the form of one of the old common counts a general indebtedness for work and labor. The city answered setting up the contract, and assignment, and alleging that all work was done under the contract, and fully paid for. An unverified reply was filed. 1. Petition; common counts. Contract, controls price. Extra work. The district court, upon the trial, ruled substantially, that the contract was outside the case; that the plaintiff by the form of his petition had abandoned the contract, and was suing for the value of the work done, and generaiiy limited the testimony to the quantity of work, its acceptance, and value. The instructions followed these rulings, and discarded the contract. In this was error. Whatever criticism may be placed upon such pleadings, as involving a departure from the true spirit of code pleading, they are almost uniformly sustained by the code authorities. It is said by Pomeroy in his work on Remedies and Remedial Rights, section 543: “Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff’s cause of action; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following: When the plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant’s obligation to pay, he may if he please, sue upon the defendant’s implied promise to make such payment, rather than upon the express undertaking of the original contract; and to that end he may resort to a complaint or petition identical with the ancient common counts.” In support of this he cites in a note, a large number of authorities. In the case of Columbia Bank v. Patterson’s Adm’rs, 7 Cranch, 299, the supreme court of the U. Si, by Story, J., says: “We take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not under seal, where the contract has been [570] completely executed; and that it is not in such case necessary to declare upon the special agreement. In the case before the court, we have no doubt that indebitatus■ assumpsit was a proper form of action to recover, as well for the work done, under the contract of 180f, as for the extra wor]Cm it may} therefore, safely be admitted that where there is a special agreement for building a house, and some alterations or additions are made, the special agreement shall, notwithstanding, be considered as substituting so far as it can be traced.” And in a later case, Dermott v. Jones, 2 Wall. 1, the same court, by Swayne, J., uses this language: “While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the páyment of the price, he,may sue on the contract, or indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.” And such seems to be the almost unbroken current of the authorities. So that, though the petition was in form simply a claim for the value of work done, the plaintiff was at liberty to introduce the contract, and rely upon its terms as controlling evidence of value. Not only is this true as to the work originally specified in the contract, but also as to all extra work, done by mutual consent, so far as the terms of the contract can be traced. The rule is thus stated by Sedgwick in his work on the Measure of Damages, p. 222: “So also, where work is done under a special agreement at estimated prices, and there is a deviation from the original plan by the consent of the parties, the contract is made the rule of payment as far as it can be traced, and for the extra labor the party is entitled to his quantum meruit.” This error compels a reversal of the judgment, and a new trial. We do not deem it necessary to consider the other questions discussed by counsel, for this error involves such a radical change in the whole scope of the testimony, and the [571] character of the issues, that perhaps none of those questions may be of any practical importance. The judgment will be reversed, and the case remanded for a new trial. Horton, C. J., concurring.