| Mo. Ct. App. | Mar 3, 1890
Lead Opinion
This action is stated in a petition declaring on a written contract for building defendant a house for a price therein specified. Plaintiff alleges that he duly performed all the conditions of the contract except as to the porch roof, the flue in the kitchen, the painting, and a portion of the flooring, which modifications or changes were made at defendant’s request, and for which he agreed to pay. That the contract and its conditions hp duly fulfilled as thus modified. There was a second count on an account for a sum amounting to $51.45.
The answer denied the conditions of the contract had been performed and set up damages by way of recoupment, on account, among other things, of plaintiff failing to furnish the kind and grade of material, and that he failed to perform the work in a skilful and workmanlike manner.
I. We are of the opinion that the matter of'waiver either in the evidence or instructions should not have been permitted to make its appearance at the trial. It is a well-settled law in this state that, when a petition upon a written contract alleges specific performance of the conditions and obligations on the part of plaintiff, there can be no recovery upon a waiver not pleaded. Lanitz v. King, 93 Mo. 513" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/lanitz-v-king-8009143?utm_source=webapp" opinion_id="8009143">93 Mo. 513; Pier v. Heinrichoffen, 52 Mo. 535; First Nat. Bank v. Hatch, 78 Mo. 13" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/first-national-bank-v-hatch-8007380?utm_source=webapp" opinion_id="8007380">78 Mo. 13; Nichols v. Larkin, 79 Mo. 271. We apprehend the court permitted the matter of waiver to come into the case under the allegations in the replication which, as was stated, pleads a waiver. But we think it was not, in this case, proper matter for reply under the code. The statute, section 3524, Revised Statutes, 1879, is that, “where the answer contains new matter, the plaintiff shall reply to such new matter, denying generally or specifically the allegations controverted by him, or any knowledge or information thereof, sufficient to form a belief, and he may allege in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to the new matter in the answer.” Now the petition in this case alleges a performance of the contract, and the answer does not set up any new matter as to this, but denies the allegation. The issue is thus complete. Again, the reply, under this statute, may set up', in defense of the new matter in the answer, any new matter not inconsistent with the petition. The petition alleges performance, but the reply, in effect, alleges non-performance, in that the performance was waived. This is not consistent with the allegation of the petition.
So if the petition, being on the contract, had alleged the facts, that is to say, performance of all that was performed and waiver of all that was waived, it would have been proper to receive testimony of the waiver alleged. But an allegation in the reply which ought to have been made in the petition is not sufficient and does not cure the defect. Pomeroy on Rem. and Rem. Rights, sec. 579; Gould’s Plead., chap. 4, sec. 8, p. 163; Webb v. Bidwell, 15 Minn. 479" court="Minn." date_filed="1870-07-15" href="https://app.midpage.ai/document/webb-v-bidwell-7962559?utm_source=webapp" opinion_id="7962559">15 Minn. 479; Durbin v. Fisk, 16 Ohio St. 534.
II After an examination of the evidence before us we are confident plaintiff’s action should be quantum meruit. Much of the difficulty surrounding the case now, results from the action being founded on the written contract. When such is the petition there can be no recovery on the quantum meruit, and as the judgment will be reversed plaintiff may have the opportunity to amend. Defendant, however, contends that an action on a specific contract cannot be changed by amendment to one on quantum meruit. This point was ruled otherwise in Eyerman v. Mt. Sinai Cem. Ass’n, 61 Mo. 492" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/gormly-v-vulcan-iron-works-8005216?utm_source=webapp" opinion_id="8005216">61 Mo. 492.
The foregoing disposition of, this case renders it unnecessary to go into a detailed examination of the numerous exceptions taken by defendant at the trial.
The judgment, with the concurrence of all, is reversed and the cause remanded.
Rehearing
ON REHEARING-.
A further examination of this case confirms us in the opinion that the action is on a written contract for building a house and not upon a quantum meruit. The authorities cited us by plaintiff
It is contended that waiver of the performance of the contract was pleaded in the petition, and that the waiver pleaded in the reply was only a plea of waiver of damages for not performing the contract. That part of the petition claimed to have pleaded a waiver is as follows: “That defendant has paid fourteen hundred and forty-nine and eighty-four-hundredths ($1449.84) dollars on said contract as modified as aforesaid, and accepted said house thereunder, and has occupied it since its completion.” In order to constitute a waiver there must exist knowledge of the true situation. The plaintiff must have accepted of a different thing or article to which he was entitled under his contract with a knowledge that it was different. To waive the performance of a contract he must have known it had not been performed. Minor v. Edwards, 12 Mo. 137" court="Mo." date_filed="1848-07-15" href="https://app.midpage.ai/document/minor-v-edwads--price-6612552?utm_source=webapp" opinion_id="6612552">12 Mo. 137. Now allowing the most that can be made out of this allegation and, for the moment, making no distinction as to building contracts, there should have been some allegation that defendant accepted the house as being built under the contract knowing the contract had not been performed in the things wherein it was not performed. Johnson Co. v. Lowe, 72 Mo. 638.
But it is not necessary to discuss this matter when it is so clearly demonstrated by the petition itself that a waiver is not pleaded and was not intended to be. Throughout its length it iterates and reiterates a performance of the contract as modified. It tenders the issue, point blank, of performance. The single sentence now urged as being a plea of waiver, which implies nonperformance, is preceded and succeeded by continuous reference to the contract which is alleged to have been performed.
As stated in the original opinion, the waiver is pleaded in the reply; but counsel now meet us with the assertion that the reply only pleads a waiver of damages ; damages, of course, arising by reason of a breach of the contract. By this it must be meant that it requires two waivers to exonerate plaintiff, one a waiver of performance, and the other a waiver of damages for such non-performance. Thus plaintiff would take more upon himself than is necessary. If he establishes a waiver of performance we should be inclined to deny damage against him for non-performance. If he establishes a waiver of damages for non-performance we should be inclined to hold it a waiver of performance. As these propositions embrace exactly the same thing, the establishment of either will suffice.
It is further urged upon us that under a plea of performance a waiver may be proved. This has been so held by the supreme court and this court in insurance
We have given careful consideration to the points and authorities presented in respondent’s briefs and have arrived at the conclusion that his case, as it now stands, is without merit, and, therefore, reverse the j udgment and remand the cause.