Wonsettler v. Lee, 40 Kan. 367

40 Kan. 367 | Kan. | 1888

The opinion of the court was delivered by

JOHNSTON, J.:

The only complaint made by Wonsettler in this court is that the petition filed by Lee in the district court did not state facts sufficient to constitute a cause of action. Counsel for plaintiff in error claim the petition to be insufficient because it appears that a recovery was sought upon a contract which was never reduced to writing and was not to be performed within one year, and hence was within the statute of frauds. It is true that the contract under which the work was performed by Lee was not in writing, and also that it was one which necessarily required five years for its full performance, and it therefore fell within the prohibition of the statute. If the action was based solely on this verbal contract, as claimed, it could not be maintained; but we think the allegations of the petition are sufficiently broad to warrant a recovery on a quantum meruit. While Lee cannot recover under the contract, he is entitled to compensation according to what the work performed was reasonably worth. Won-settler, having received the benefit of the services performed under the verbal contract, cannot escape liability for the benefit received by refusing to perform that contract. It is conceded by counsel for plaintiff in error that Lee is entitled to recover in a proper action what the services rendered are reasonably worth; but he insists that Lee has relied on the express contract alone, and therefore the action must fail. In our view, the void contract is not set out as the basis of the action, but rather by way of inducement to explain the circumstances under which the work was done, and to show that it was not a gratuity. The petition alleges how Lee was induced to furnish the labor, the character and duration of the services performed, the benefits derived by Wonsettler therefrom, and what they are reasonably worth, and follows with a general prayer for judgment.

The fact that a void contract is recited in a petition will not make it demurrable, if the other facts stated therein constitute a cause of action.

“All that a plaintiff needs to do in stating his cause of action is to state the facts .of his case; and if such facts would entitle him to recover in any form of action, either at law or in equity, he will be entitled to recover under such statement.” (Deisher v. Stein, 34 Kas. 39.)

Our conclusion is that the demurrer was correctly overruled, and hence the judgment of the district court will be affirmed.

All the Justices concurring.