18 S.D. 615 | S.D. | 1904
The plaintiffs allege in their complaint,- in substance, that on August 10, 1901, the parties entered into a contract whereby they became jointly interested in the cutting, baling and shipping of hay; that by the terms of such contract defendant was to furnish certain hay lands, and plaintiffs were to cut, stack, and load the hay on cars, at stations named therein, at their own expense, and, when so loaded, were to receive for their labor and outlay $4 per ton; that plaintiffs, under defendant’s directions and pursuant to such contract, did cut and stack 425 tons of hay; that they baled about 90 tons, but were prevented by the defendant from baling and delivering all the hay required by the terms of the contract; that they expended $600 in doing what was done under the contract, for which they claim a lien on the hay not delivered; and that defendant has wrongfully taken possession of hay not paid for, and threatens to continue taking the same without paying what plaintiffs claim. They demand an'accounting, the appointment of a receiver, and such other relief as may be deemed equitable. Defendant admits in his answer having entered into a contract with the plaintiffs on the day alleged in the complaint; avers that such contract was in writing, a copy of which is set forth; denies that the parties had a joint interest in the hay; alleges complete performance on his part, and certain breaches of the contract by the plaintiffs. He further alleges by way of counterclaim, the payment
After having answered, and when the cause was called for trial, defendant moved to strike out certain specified portions of the complaint as irrelevant and redundant. The motion was properly denied. Such a motion must be made before demurring or answering, or the right will be waived. Maxwell, Code Pleading, 2 362.
When the trial.began, defendant objected to the introduction of any evidence, for the reason “(1) that the complaint doos not state a cause of action, in that it fails to allege that the plaintiffs on their part have fulfilled the terms of the contract on which this action is based; (2) that the complaint does not set out the contract specifically, by which the court can ascertain whether the plaintiffs are entitled to recover thereon or not; and (3) that the complaint does not state facts sufficient to warrant plaintiff in the relief prayed for.” The objection was overruled. The ruling was based on the facts confessed by the objection, and must be considered with reference to the allegations of the complaint, uninfluenced by the terms of the written contract set forth in the answer. The first ground of objection is untenable, because, as we construe the complaint, it discloses such a joint enterprise and interest in certain personal property as warrants an accounting and appointment of a receiver pendente lite. The matter of performance is not involved, as it would be were plaintiffs merely seeking to recover damages for the breach of a contract. The second ground is clearly untenable. If the complaint was so in
On August 10, 1901, the parties entered into a written contract whereby it was agreed that plaintiffs should cut, stack, haul, and press the hay then growing on the south half of section 2-111-63, the south half of section 28-112-63, and the southeast quarter of section 17-112-62; the hay cut on the first two tracts when pressed, to be hauled and put on the cars by the plaintiffs,
No question is raised concerning the sufficiency of the evidence to sustain the findings of fact,_ but defendant contends that the court erred in receiving evidence of the reasonable value of plaintiffs’ services, and allowing compensation for the same, when they failed to show a substantial compliance with the terms of the contract. There is, perhaps, no more vexatious question in the adjustment of the rights of parties to contracts than the determining what, if any, compensation may be recovered by a party to a special contract who has performed services or furnished materials not in strict compliance with the terms of the contract, but which have been accepted and utilized by the other party. By the strict rules of the common law, full performance was required as a condition precedent to the right of recovery; but the rigor of this rule has been relaxed in many jurisdictions, and the tendency is to administer equitable relief, rather than to hold the parties to the very letter of their agreement. Accordingly, when, under a special contract, the plaintiff has proceeded not in strict accordance with the stipulations of the agreement, yet if what he has done has been accepted and used by the defendant, it is
No question being raised regarding the validity of the stipulations as to liquidated damages, the court did not err in allowing the amount provided for in the contract, which should exclude all other items of damage, and, as there is no dispute concerning the payments, defendant’s credits were properly ascertained. It did, however, err in allowing the plaintiffs the contract price for the 23 tons delivered at Broad-land. As the record does not show what it was worth to haul the hay to that station, the plaintiffs should only be allowed for cutting, stacking, and baling the hay so delivered, and, as it appears that such work was worth $2.75 per ton, they should have been allowed $63.25 for the hay delivered at Broadland, reducing the total of plaintiffs’ credits to the extent of $28.75. In all other respects the account was correctly stated.
It not appearing that the variance between the allegations of the complaint and the proof actually misled the defendant in making his defense upon the merits, such variance cannot be deemed material. Rev. Code Civ. Proc. § 146.
Plaintiffs were entitled to a special lien on the undelivered hay, dependent on possession, for the compensation due them from the defendant. Rev. Civ. Code, § 2153. As between the parties, they were in possession until it was voluntarily delivered, and, though the receiver was appointed after the answer was served, and defendant was not insolvent, the court
Except as modified herein, the judgment and orders appealed from are affirmed. Because of the slight modification, respondent should be allowed disbursements, but no costs should be taxed in favor of either party. The action is remanded with directions to modify the judgment as indicated herein.