2 S.D. 506 | S.D. | 1892
The parties entered into a contract on the 25th day of September, 1886, whereby plaintiff; agreed to do all the painting, according to certain plans and specifications, in, upon and about two brick buildings belonging to defendant, situated in the city of Huron. For doing this work the defendant was to pay the plaintiff the sum of $150 upon the completion of the work. In accordance with said contract, plaintiff commenced to perform his part of it, but, after he had performed services and furnished material under said contract of some considerable value, defendant, by his own act, prevented the plaintiff from completing the work under the contract, by ordering plaintiff’s servants off the buildings, and by force deterring them from completing the same, which was the reason why the contract was not fully performed by plaintiff. Plaintiff subsequently demanded payment for the value of the work he had done, and for the value of the material furnished, which was refused by the defendant. Plaintiff then brought this action against defendant for work and labor done and for material furnished upon a quantum meruit account. Defendant, answering, denies the matters set up in the complaint, and alleges that the labor and material performed and furnished by plaintiff was performed and furnished under a special contract, which contract has not been performed. The reply of plaintiff admits the special contract, but alleges that his failure to fully perform and execute the contract was because the defendant prevented him from doing so. and therefore he is entitled to the value of his work and material. When the cause came on for trial, defendant objected to the introduction of any evidence to support the complaint, because plaintiff seeks to recover upon an implied promise in law for the value of services rendered and material furnished under a special contract. This objection was overruled by the court, and plaintiff obtained a judgment for the value of both labor and material.
In the case at bar the plaintiff insists that the original contract was rescinded and abandoned by reason of his being prevented in the prosecution of the work and fulfilling of the contract by the will and force of the defendant, and for the reason the contract was annulled. The evidence shows without