Beers v. Kuehn

84 Wis. 33 | Wis. | 1893

"Winslow, J.

The trial court charged the jury that the case must stand either upon the contract alleged by the plaintiffs or that alleged by defendant, and substantially instructed them that they were not entitled to find a verdict for the reasonable value of the work. Due exception was taken to the various portions of the charge containing these propositions, and specific exception was taken to the charge because it did not permit a recovery upon a quantum meruit.

We think the exception well taken. The evidence as to the contract was so utterly contradictory as to its terms that the jury might well -find that there never had been a meeting of the minds of the parties; that there was an honest and mutual mistake; and that both of them never assented to the same terms. Row, had the complaint contained two separate counts,— one to recover an agreed contract price, and one to recover the reasonable value,— and had the proofs been the same as they are in this record, there would be no doubt of the right of the plaintiffs to recover the reasonable value of the work in case the jury found that by honest and mutual mistake the minds of the parties had never met and assented to the same terms of contract.

In the present case the complaint blends a cause of action upon express contract for the agreed price with a cause of action upon implied contract for the reasonable value of the work. The allegations are entirely sufficient to make a good complaint upon both causes of action, hut the trouble is they are not stated separately, as the rules of pleading require. While this is poor pleading, it is not fatal to the causes of action thus blended. Advantage of the error must he taken by motion to make definite and certain. Baxter v. State, 9 Wis. 38. The defendant, not having chosen to take advantage of the error, but having gone to trial upon a complaint which contains sufficient allegations to cover both causes of action, should be prepared to meet them both. This view of the case necessitates reversal.

By the Gourt.— Judgment reversed, and cause remanded for a new trial.