190 P. 138 | Mont. | 1920
delivered the opinion, of the court.
Appellant Ruth Wilcox, Roy J. Wilcox and Arthur J. Wilcox are the children of one Ida J. Wilcox. The complaint herein contains three causes of action. The first alleges that from November 26, 1911, to December 28, 1913, plaintiff, at- the special instance and request of Newman, performed work and labor at his lunch counter at Clancy, Montana, which services were of the “reasonable value of $960, being at the rate of $40 per month”; that no part thereof has been paid, and demand for and refusal of payment. The second cause of action contains like averments, except that the services are alleged to have been performed by Roy J. Wilcox and the claim assigned to plaintiff; while the third cause of action is identical with the second, except that Arthur J. Wilcox is alleged to have performed services, during the period mentioned, of the reasonable value of $760.
The answer, as to each of the causes of action, denies generally each of the allegations, and “alleges the fact to be” that defendant employed Ida J. Wilcox to conduct and operate the lunch counter under an agreement whereby she was to furiiish and perform all labor and services necessary in connection therewith, at a wage of $75 per month, later raised to $90 per month, and room and board for her three children; that defendant paid the said Ida J. Wilcox the said wages as they became due during all of the said period, and furnished the room and board as agreed; that defendant had no other agreement or understanding with the said Ida J. Wilcox, or with any other person, or persons, with reference to running said lunch counter; and further alleges that, during said period, each of said children was a minor.
On the trial Ida J. Wilcox, and each of the said children, testified that respondent called on them at Shelby, Montana, and employed the entire family, and, while all were present, agreed to pay each of the children $40 per month. Each of the children, in addition to stating that such was the agreement,
The plaintiff having rested, defendant moved for a judgment
There are but two assignments of error, to-wit: That the court erred in sustaining the motion, and that it erred in overruling the motion for a new trial.
1. There can be no question but that a party with whom an express contract has been made may sue on quantum meruit, and thereafter, on showing a performance of the contract, introduce the express contract to prove the reasonable value of the services rendered. In the case of Blankenship v. Decker, 34 Mont. 292, 298, 85 Pac. 1035, 1037, this court held that “Upon a complete performance of an express contract for services at a stipulated compensation, there seems to be no sound reason why a recovery may not be had upon the quantum
The general rule is stated in Cyc. as follows: “Where there is a special agreement and the plaintiff has performed on his part, the law raises the duty on the part of the defendant to pay the price agreed upon, and the plaintiff may count either on the implied assumpsit or on the express agreement. * * * The only effect in such a case of proof of an express contract fixing the price, is. that the stipulated price becomes the quantum meruit in the case. It is not a question of variance, but only of the mode of proof of the allegations of the pleading.” (9 Cyc. 685.) In the ease of Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025, the rule is announced as above, but closes with the statement: “There is no reason why a recovery may not be had upon a complaint on quantum meruit * * * when the opposite party to the action has not been misled in his defense.”
Counsel contends that, even though the general rule is as
2. Counsel for respondent insists that, even though the court
The test as to when a replication is necessary is given in the ease of Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189, quoting from Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409: “ ‘Whatever facts are alleged in the answer, that
In Hanson Sheep Co. v. Bank, 53 Mont. 324, 163 Pac. 1151, this court said: “Any evidence is admissible under a general denial which tends to controvert the allegations of the complaint. This includes evidence of any fact which is inconsistent with, and thus negatives, the plaintiff’s cause of action.”
The case of Chealey v. Purdy, 54 Mont. 489, 171 Pac. 926, is directly in point here, for there the court said: “The defendant, under his general denial, may introduce any evidence which tends to show that he did not enter into the contract, or that he made a contract different in one or more substantial particulars from that alleged, or that the plaintiff has failed to fulfill the obligations assumed by him therein according to its terms, or any other fact which tends to destroy, not to avoid, the cause of action alleged.”
Here the averments of the answer do not “amount to an admission of the allegations of the complaint, and tend to establish some circumstance or fact not inconsistent with such allegations,” but, on the contrary, they emphatically deny all of such allegations and set up facts “inconsistent with, and thus negative, plaintiff’s cause of action.” Under the above rules, every fact alleged in the answer could have been proved under
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.