163 P. 819 | Or. | 1917
delivered the opinion of the court.
“That defendants breached and broke said contract in that they failed and refused to plow said land as it was cleared and grubbed and made ready for plowing, as in said contract they had agreed to do, and this prevented plaintiff from following the plow and removing the roots from said land.”
The action of the court in permitting the amendment is assigned as error but since it does not change the cause of action we cannot discover any abuse of discretion therein.
“The court instructs the jury that before they can find for the plaintiff in any amount they must find that the defendants have broken the contract and that plaintiff has not broken the contract. That if the evidence showed that plaintiff had broken the contract that he could not recover anything. That if the jury find that plaintiff has not broken the contract but that defendants have broken the contract the plaintiff could recover such sum as was reasonably worth for the work done and the amount of the benefits the defendants received from the plaintiff’s work, not exceeding the sum stated in the complaint. You are instructed*677 that the measure of damage in this case is the reasonable value of the services rendered by the plaintiff to the defendants. You are not to consider what the plaintiff had to pay for board or what he had to pay for powder, but whatever the work was reasonably worth without regard to the contract price.”
The testimony was not reported and these are the only instructions disclosed by the record. The only error to which our attention has been called relates to the measure of damages and as to that point the charge is incorrect. The weight of authority is to the effect that the limit of the plaintiff’s recovery in an action like this is the contract price: 5 C. J. 1411; Cozad v. Elam, 115 Mo. App. 136 (91 S. W. 434); Reifschneider v. Beck, 148 Mo. App. 725 (129 S. W. 232); Edward Thompson Co. v. Kollmeyer, 46 Ind. App. 400 (92 N. E. 660); Massey v. Taylor, Wood & Co., 45 Tenn. 447 (98 Am. Dec. 429). The agreed compensation was $400 and the plaintiff admits the receipt of $135, therefore the limit of recovery must be $265. As the judgment is $40 in excess of the latter sum it is to that extent erroneous, and we shall modify the same by reducing it to $265. With this modification the judgment is affirmed.
Modified. Rehearing and Motion to Retax Costs Denied.