Brierre v. Cereal Sugar Co.

REYBURN, J. (after stating the facts as above.) — 1. The case of Dawson v. Quillin, 61 Mo. App. 672, invoked by appellant to maintain the position sought to be upheld, that there was no account filed by plaintiffs here sufficient to comply with the statute, upon examination will be found merely to reiterate, that where a.pleading does not comply with the statutory requirement, the adverse party may exercise bis election between moving to have it made more definite, or at the trial object to the introduction of any evidence to support it, the latter [628] being the remedy or course determined on and attempted by appellant in this action; but the authority cited shows that the pleading discussed did not contain the items of the accounts nor was any exhibit attached. The transaction between plaintiffs and defendant involved the purchase of one hundred barrels of sugar of the brand and description detailed in the exhibit, which also showed the quantity and price and fully complied with the statute. 2. There was no departure from the issues of the pleadings as charged by appellant, even though the plaintiff !s form of action may be conceded to be quantum meruit, while their proof was directed to establish an express contract. Whatever may be the rule prevailing in other States, it. is well established in this State that a party may sue upon quantum meruit when an express contract existed and is proven at the trial; but the contract price will limit the recovery; In the words of the able commissioner, in Mansur v. Botts, 80 Mo. 651: "It is a rule of common law long established, that indebitatus assumpsit will lie to recover the stipulated price due on a -special contract when the contract has been fully executed and it is not necessary to declare upon the the special contract.” Such was the rule at common law, and the code has not modified it. In Keith v. Moore, 146 Mo. 90, the Supreme Court reviewed the earlier cases and approved the rules enunciated, quoting: “If one party, without the fault of the other, fails to perform his side of the contract in such a manner as to sue on it, still, if the other party has derived a benefit from the part performed, it would be injust to allow him to retain that without paying anything. The law therefore, generally implies a promise on his part to pay such remuneration as the benefit conferred is reasonably worth, and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable. Yeates v. Ballentine, 56 Mo. 535, and cases cited. The established rule extracted and [629] deduced from all the cases is, that where a party fails to perform his work according to the stipulations of his agreement, he can not recover on the special contract; but if the services rendered by him or the material furnished, are valuable to the other party, and are accepted by such party, then he would be liable to pay the actual value of the work performed or the materials furnished, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the agreement. Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 491. The principle upon which this rule is based is so fair, just and equitable that while at first its application was limited to a certain class of contracts, it has now become in this State a rule of general application to; all contracts where it can be applied without doing the defendant injustice.” In Moore v. Glaus, 113 Mo. 107, the Supreme Court declares that where the contract is performed, the plaintiff may sue in assumpsit using the common count of quantum meruit, and that it was allowable to unite a count in assumpsit with one on the contract in the same petition. 3. The second count of the petition which the plaintiffs abandoned, contained allegations that defendant, a warehouseman, agreed with plaintiffs for the consideration of two cents per bag per month to store three hundred sacks of coffee of plaintiffs, and also to take out sufficient insurance thereon to protect plaintiffs against loss or damage as result of fire, the premiums for such insurance to be advanced by defendant and repaid by plaintiffs. An averment of violation of this contract was made and judgment asked for the damages incurred in consequence. Defendant tendered this abandoned pleading in evidence, and it was excluded by the court as irrelevant, and in this ruling we find no error; this section of the petition concerned another transaction different from that of the basis of the first count, and had no relevancy to the controversy on trial. [630] No other assignments of error justifying consideration have been presented, the finding of fact by the trial court is supported by substantial testimony and will not be disturbed. The judgment is affirmed. Bland, P. J., and Goode, J., concur.