100 P. 654 | Kan. | 1909
The opinion of the court was delivered by
T. M. Templeton and Richard Rohrer, partners in' the real-estate business, brought this action against the administrators of the estate of J. H. Kuhlenkamp to recover compensation for services rendered in finding a purchaser for, and assisting in the sale of, the farm of J. H. Kuhlenkamp. In their ■petition they alleged that in his lifetime Kuhlenkamp made a contract with them to procure a purchaser and assist in the sale of his farm, and that they were to receive as compensation so much as the purchase-price exceeded $12,000. It was alleged that after they had procured a purchaser, but before the completion of the sale, Kuhlenkamp sent them the following note:
“Dear Sir—I understand you think of selling my farm. I withdraw all I said. I will not sell it for the price I told you. So you see you are out, as I do not want to sell it. I thought I had better tell you in time.
Yours truly, J. H. Kuhlenkamp.”
It was averred that Kuhlenkamp refused to abide by the agreement and proceeded to consummate the sale of the farm to the purchaser whom they had found,
“Plaintiffs further say that a short time after said sale was effected, as aforesaid, to wit, on the — day of -, 1906, the said J. H. Kuhlenkamp died, and that, by reason of his death and the ensuing incompetency of plaintiffs to testify in this action to conversations or transactions had by them with deceased, they are unable to produce competent proof of the terms of said oral agreement, so far as the same relates to the item, of their compensation, but are, and will be, able to produce proper evidence of their employment by the said J. H. Kuhlenkamp, now deceased, to procure a purchaser for, and assist in selling, said farm.”
In the concluding paragraph of their petition plaintiffs stated that by reason of the premises they had elected to sue on a quantum meruit for the value of their services instead of the compensation agreed upon, and hence they asked judgment for $405.87. Upon a demurrer the court held that the plaintiffs had not stated a cause of action in their petition, and, as they chose to stand upon their petition, judgment was rendered for defendants.
The petition states a cause of action upon a quantum meruit. In behalf of the defendants it is contended that the averment of the death of Kuhlenkamp and the plaintiffs’ incompetency to testify to conversations and transactions had with him—that they are unable to produce proof of the terms of the oral agreement—in effect nullifies the purpose of section 322 of the civil code and destroys the validity of their petition. In this explanatory averment the plaintiffs unnecessarily set out one of the reasons why they elected to sue on the quantum meruit. This surplusage, however, is immaterial if the other averments are sufficient to warrant a recovery for the value of their services. The petition alleged the employment of plaintiffs, not only to find a purchaser, but also to assist Kuhlenkamp in effecting a sale. It was then stated that after finding a purchaser,
The fact that the pleading disclosed that a special contract was made fixing the compensation does not limit the plaintiffs to a recovery under it nor make it essential to prove its terms. In Usher v. Hiatt, 21 Kan. 548, it was held that “where a plaintiff states in his. petition all the facts of his case, setting forth a special contract, the work done thereunder, and its value, and then proves such facts, he may recover thereon, provided he could have recovered thereon at common law, either upon the special contract or upon a quantum meruit count.” (Syllabus.) In Jenson v. Lee, 67 Kan. 539, 73 Pac. 72, the plaintiff entered into a contract with his employer to perform work and labor for a share of the profits of the undertaking, but before the work was completed the defendant wrongfully prevented the plaintiff from carrying out the contract, and it was held that the plaintiff was then warranted in treating the contract as non-existent and to recover the actual value of the services rendered. In James v. Parsons, 70 Kan. 156, 78 Pac. 438, it was ruled that a servant wrongfully discharged by his employer before the expiration of the time for which he was employed may pursue either of two remedies—that is, he may treat the contract as terminated and recover in quantum meruit or he may stand upon the contract and recover damages
It is argued that the value of the services can not be established because the contract furnishes the measure of recovery and since it is averred that plaintiffs are unable to prove the contract they have in fact admitted that the value of the services can not be shown. It is said that in any event plaintiffs can not recover a sum in excess of the contract price, and if that can not be established no recovery whatever can be had. Although the action is not on the contract the value- fixed
The judgment is reversed and the cause remanded for a new trial.