141 P. 572 | Ariz. | 1914
The appellee sued the appellant for a balance of $3,176.54, alleged to be due him on a written contract, by the terms of which the plaintiff agreed to repair and put into condition a designated portion of defendant’s canal, for which he was to receive $5,000. The complaint contains two counts; one count on the contract, which is pleaded in haec verba and according to its tenor and effect; and one on quantum meruit.
Defendant’s answer consisted of a general demurrer, an admission of the execution of the contract sued on, with a denial of its legal effect and tenor as pleaded by plaintiff, and a general denial of all allegations in complaint not specifically admitted or denied.
The case was tried by the court without a jury, and resulted in a verdict for the plaintiff in the sum of $1,000, upon which judgment was entered. Motion for new trial was overruled. From the order overruling which and the judgment this appeal is prosecuted.
Four errors are assigned, but we do not deem it necessary to pass upon all of them. The one that we shall notice is as follows:
“The court erred in rendering judgment in favor of the plaintiff and against the defendant in the sum of $1,000, as there is no evidence whatever in the records of this case to support such judgment. ’ ’•
All of the evidence introduced by plaintiff was directly in support of the special count upon the contract and its full performance. If that count was supported by the evidence, the appellee should have had judgment for the contract amount, less credits, or for $3,176.54, the amount sued for. In other words, if the plaintiff, by proper and legal evidence, proved full and complete performance, he was entitled to full
It was a question of fact to be decided by the trial court as to whether plaintiff had fully performed his contract (Adlard v. Muldoon, 45 Ill. 193), and had that fact been resolved by the court in favor of plaintiff, the contract price was the measure of his damages. The court must have determined that fact adversely to plaintiff, because the judgment was for much less than the balance of the contract price.
On the quantum meruit count it is not the amount agreed to be paid under the contract, but the reasonable value of the work and labor performed, that the plaintiff is entitled to recover.
It may be true, as we think it is, that the contract is evidence of the value of the labor and work performed where the only dispute is as to the price (Livingston v. Wagner, 23 Nev. 53, 42 Pac. 290; Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035 ; 9 Cyc. 685, 686), but when the controversy is as to the manner and sufficiency of performance, and it is sought to recover the reasonable value of services, as upon an implied contract, upon the theory that, while the contract may not have been fully performed, yet the work and labor added to the value of defendant’s canal, it is incumbent on plaintiff to prove such value by evidence dehors the contract, with the limitation that the recovery could in no event exceed the contract price.
There being no doubt that the judgment was based on the quantum meruit count, we have examined the evidence to see if it supports the judgment. The appellee introduced no evidence of value whatever, outside of the contract price agreed upon for the completed job. He made no proof that the work done by him on the canal was of any value. .The evidence of the amount and character of the work done was introduced by the appellant over objections of appellee. It was offered by appellant for the purpose of refuting appellee’s claim of full performance, and, from the judgment entered, it evidently had that effect. Avery, the superintendent of appellant, in his examination went into some details as to the kind
The court, in the trial of the facts, was performing the ordinary functions of a jury, and, in arriving at a verdict on the facts, was controlled by like considerations. The verdict and judgment thereon do not conform to the evidence, and are without the support of any evidence. The perniciousness of such a verdict, when by a jury, is characterized by Thompson on Trials, section 2606, in the following language:
“Where the verdict which the jury return cannot be justified upon any hypothesis presented by the evidence, it ought
Judgment reversed and cause remanded for a new trial.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.