Eyerman v. Mount Sinai Cemetery Ass'n
61 Mo. 489
Mo.
1876
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

The petition stated that the defendant was indebted to the plaintiff’in the sum of two thousand five hundred and ninety dollars and ninety-three cents, for work and labor done and materials furnished, which were then set out at the prices agreed upon in the writings afterwards referred to. It was then alleged that the work and'labor were done, and the materials were furnished under the terms and conditions of a certain instrument of writing, executed by the plaintiff and defendant, and which was produced and shown to the court; that plaintiff kept and performed all the terms and conditions of the instrument of writing to be kept and performed by him; that he furnished the materials in the writing specified of a proper and suitable character, and did the work therein specified in a good and workmanlike manner, all of *491which was done under the supervision of the engineer of the plaintiff, and accepted by him, etc. The answer was a denial of all the allegations in the petition.

At the instance of the plaintiff the court in effect declared the law to be, that although some of the material was not what the contract required, yet the plaintiff should be allowed what it was reasonably worth. And there was a refusal to instruct for the defendant, that unless the plaintiff had performed his part of the contract, in manner, form and quality as specified in the agreement, he could not recover.

There was a judgment at special term for plaintiff", which was reversed at general term, and the cause was appealed to this court

In Yeats vs. Ballentine (56 Mo., 530) all the cases in this court bearing on the question here involved, were cited and commented on. The established rule extracted and deduced from all the cases is, that where a party fails to perform his work according to the stipulations of his agreement, he cannot recover on the special contract; but if the services rendered by him or the materials 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. There may be a recovery upon a quantum meruit, although the contract has not been complied with, but in such a case the petition must be grounded on a reasonable value, and it must not be declared on the contract. If the action is brought upon the agreement, a performance of its terms must be shown before a recovery can be sustained. The correctness of the ruling of the court at general term depends upon the character of the petition.

Now the petition says that the work and labor were done, and the materials were furnished under the terms and conditions of a contract, which is shown to the court, and it is averred that the plaintiff kept and performed all the terms and conditions of the contract which were to be kept and per*492formed by him, and judgment is asked for the work done and materials furnished at the contract price. This evidently amounts to a petition on the contract, and it devolved on the plaintiff, as a pre-requisite to a judgment in his favor, to show a performance on his part of its stipulations.

The general term, therefore, did not err in its judgment, and if the plaintiff cannot show a compliance on his part, lie should amend his petition, in order that he may proceed on a quantum meruit.

The judgment must be affirmed.

The other judges concur, except Judge Vories, who is absent.