95 P. 1004 | Utah | 1908
This is an action to recover a balance alleged to be due for the construction of a certain building with additions thereto. The respondent substantially alleges in his complaint that in January, 1906, he and the appellant entered into a written agreement, whereby respondent agreed to build, replace, and repair the house, titchen, and wash room of the appellant, which were damaged and partially destroyed by fire, for the agreed price of $877, and which is the reasonable value thereof. The agreement is set forth in full in the complaint, and it is provided therein that respondent shall “build, replace, and repair the house, kitchen, and washroom and put all' in good condition to the acceptance and approval of John McGrath and his wife for the sum of $877, to be paid from the insurance money when it
Just before the trial commenced, respondent’s counsel, with the consent of appellant’s counsel, amended the complaint by interlining the words which we have italicized above, and which are as follows, “and which is the reasonable
After overruling the motion for the non-suit, and the appellant having offered no proof in support of her answer, the court submitted the case to the jury upon the theory outlined in the following instruction: “The court charges you that the only question for you to determine in this ease is what the work and material which the plaintiff furnished to the defendant Mary McGrath in the construction and repair of the house in question herein is reasonably and fairly worth, taking into consideration the character of the work and material and all the circumstances surrounding the transaction. The court charges you that the plaintiff is entitled to recover in this action the reasonable value of such work and material as determined by the above instruction. The court charges you that, by the admissions in the complaint in this action, the plaintiff has already been paid the sum of $324.27, and if you find from the evidence that the reasonable value of the work and material furnished by the plaintiff to the defendant Mary McGrath is less than that, or only equal to the amount already admittedly paid by the defendant, then the plaintiff is not entitled to recover in this action; but, if you find that the reasonable value of said work and material is greater than that amount, then the platintiff is entitled to recover the difference between what you find was the reasonable value of the work and material furnished by the plaintiff, less the amount which it is admitted has been paid; but in no event can your verdict be for more than $552.73.” Appellant excepted to this instruction, and now urges that the court erred in submitting the case upon the theory that the action was one as upon quantum meruit, and not upon an express contract.
If the complaint alone were considered, there would be some force to the contention that the action was based upon an express contract, and that the cause of action stated was one. to recover the amount stipulated in the contract fox* the construction and completion of the buildings, less the
Undoubtedly, one may not depart from the stipulations of his contract, and then sue and recover as upon a quantum memit. Neither is the contractor prevented from recovery upon a contract in case he has not literally complied with all the terms and conditions therein imposed. A substantial compliance, if made in good faith, and so as to make the thing contracted for useful and beneficial to the owner for the purposes for which it was intended and in compliance with the true intent and spirit of the contract, in most instances, is a sufficient compliance to permit a recovery upon the contract, with the right of the owner to recoup' any damages hé may have sustained by reason of the contractor’s failure to literally comply with the terms of the contract. While the cases cannot all be reconciled, and the courts of some states adhere to one rule, while those of other states follow another, we think the trend of modern decision is to the effect as outlined above; but if we assume in this case that 'the complaint, when technically construed, declared upon an express contract, still, in view of the whole record, appellant was not prejudiced in any of her substantial rights.- This
“Where an action is brought for the price of services fixed by an express contract, and there is only proof as upon a quantum meruit, the variance between the pleading and the proof may be disregarded, and a recovery by plaintiff sustained, unless the defendant was misled thereby in his defense.”
In Abbott’s Trial Evidence (2 Ed.), 453, the author states the rule in the following language:
“Under an allegation of a contract to pay a specified rate of compensation, plaintiff may prove a promise to pay what the services were reasonably worth, or an implied promise to pay usual compensation. The variance is immaterial, if the defendant is not misled.”
It is sometimes asserted that this rule applies only to contracts for personal services. The Supreme Court of Missouri, however, in Moore v. Gaus Sons' Mfg. Co., supra, clearly demonstrates that such is not the case, and that the rule applies to building and other similar contracts. No doubt, if upon the trial the evidence were objected to as not relevant under the issues, and if it is not admissible under the allegations contained in the pleadings, then the evidence should be excluded, and, if admitted in such a case over the objection of the defendant, it might constitute reversible error; but if the evidence is admissible under the allegations of the complaint, or is not objected to, then the rule above announced should be held to apply. In this case the record makes it too clear for controversy that appellant was not misled. Indeed, this was the theory of the only affirmative defense she relied upon at the trial. True, she insists that the respondent did not prove that the contract had 'been fully performed, and that the buildings were constructed and completed “to the acceptance and approval of herself and
Appellant, however, further contends that, although it be held that the case was properly tried and submitted to the jury, nevertheless the verdict and judgment are not supported by the evidence, that they are contrary to law, and that the amount allowed by the jury is excessive. This contention, it seems to us, must, in part at least, be sustained. As we have seen, it is respondent’s contention that the complaint, after the amendment, declared as upon quantum meruit, and not upon an express contract; that he tried the case and submitted it to the jury upon this theory. This contention we have attempted to- sustain in what has been said. The question therefore arises: Is there any evidence from which the jury were authorized to find that the respondent was entitled to recover the amount found due by their verdict? In this regard the contractor who furnished the material and constructed the buildings testified as to the material and labor required in their construction, and that the buildings, after he had completed them, without painting and plumbing, and some other minor details, were of the reasonable value of $324.25. In fact, the contract under which he agreed to do the work was for $295 only. The difference between the two amounts last named was for some changes that were made by him. He also testified that there was some profit in 'the contract for him, but that he did not figure up what it was. The value of all other labor and material, exclusive of the $324.25, that was used in the building, after allowing for clearing away the debris of the old building after the fire, and including ten per cent, on the whole amount as compensation to the respondent for overseeing the work, as he called it, amounted to the sum of $289.35. This left a difference of $263.40, between the $552.13, claimed bv respondent, and the reasonable value as testified to by him and his witnesses. When he was asked
In view of the whole record, we have concluded not to grant a new trial of the case unconditionally. In this respect we have concluded to do now what the trial court should have done in passing on the motion for a new» trial, namely, to have required the respondent to ,remit from the amount of the judgment the sum of $263.40, and, in case" he refused to do so, to have granted a new trial.
It is therefore ordered that, in case the respondent shall file with the clerk of this court, within twenty days after notice of this decision, his consent to remit from the judgment the sum of $263.40, as of the date the judgment was entered, the judgment will stand affirmed. Otherwise the