Cotey v. County of Greenlee

178 P. 25 | Ariz. | 1919

CUNNINGHAM, C. J.

(After Stating the Facts as Above). The plaintiff, in his so-called second count, does not refer to the special contract under the terms of which he was acting while constructing the Metcalf road. The exhibit annexed to and made a part of said pleading purports, on its face, to claim the benefits of the contract, both as to the contract price, the extra work done pursuant to the terms of the contract, and the unearned profits on the work “not completed because of rescission of contract by said county by refusal to make payments required.” The statement presented amounts to nothing unless it has reference solely to the special contract. Hence the plaintiff’s efforts to set forth a cause of action to recover the reasonable value of work and material furnished is finally made to depend upon the special contract of April 6, 1914. This is as it should be. The undisputed facts are that the plaintiff had no request to serve the county, other than through the channel of said contract. He is bound to rely upon the relation thus established, to have any standing in court. Before he can recover reasonable .value of the work done, the material furnished, and other valuable service rendered the county, the facts must appear that a valid contract was entered into, that the beneficial service was performed and the material furnished pursuant to the terms of said contract, that the contract relation ceased before its terms were fully performed, and that the plaintiff was not at fault in terminating said contract relation.

We have held, in Greenlee County v. Cotey, 17 Ariz. 542, 155 Pac. 302, and that holding is the law of this case, that the county’s failure to estimate the value of the construction finished during the month of June, 1914, was no breach of the special contract. In the evidence, a broad discussion is indulged in. This discussion covers the pleadings, both remaining in the case and those excluded. The reasonable value of the work performed and of the material furnished escape without notice. The contract terms, only, are considered in the evidence.

I am of the opinion that the appellant’s cause of action in qwmtum memit was met by the defense of a special contract and the failure of performance of such contract by the plaintiff. The facts abundantly support the conclusion reached by the trial court, viz., that the plaintiff take nothing.

The other questions raised on this appeal are not controlling, but are subordinate to the question of breach of the contract. The plaintiff Cannot recover, either on the contract or for the reasonable value of the work done and material furnished, when he has admitted that he has not performed the contract, unless he can show that substantial performance was prevented by Greenlee county, or by some cause recognized as superior to human endeavor. The plaintiff has failed to show any legal excuse for abandoning his special contract, and therefore has failed to establish any right to recover for the reasonable value of labor performed, material furnished, etc., claimed in the second count of his complaint.

The judgment is affirmed.

ROSS and BAKER, JJ., concur.