No. 26,471 | Kan. | May 8, 1926
The opinion of the court was delivered by
The plaintiff recovered judgment against defendant for $119.25 as an alleged balance due for wages in building a house.
The action was commenced before a justice of the peace. The issues were framed in bills of particulars filed by the litigants.
Plaintiff alleged that in the summer of 1922 he and defendant made an oral agreement whereby he undertook to do all the carpenter work on a house being constructed on defendant’s farm for $850—
“And pursuant to said verbal contract plaintiff employed workmen, and also used his own labor, and started on said carpenter work; that soon thereafter the defendant proceeded to and did employ other workmen on said carpenter work, and also changed the plans of the construction of said dwelling house, and by said action plaintiff understood and was led to believe and now alleges that said verbal contract was abandoned on the part of both plaintiff and defendant; that plaintiff proceeded in said construction work and rendered his own labor and services -as hereinafter set out, and employed workmen and paid said workmen with his own money as hereinafter set out; that defendant urged and requested plaintiff to employ said workmen to work on defendant’s residence.”
Plaintiff set out at length an account of a number of hours’ work performed by him at 75 cents per hour, and an account of a certain number of hours’ work at 50 cents and at 35 cents per hour by •other workmen, totaling a reasonable wage charge of $660.25 for himself and to reimburse him for wages paid by him to workmen employed by him at defendant’s request. Plaintiff gave defendant ■credit for $525 paid him on account, and credit for $16 for provisions and feed supplied by defendant.
Plaintiff alleged that defendant owed him a balance of $121.25, for which sum he prayed judgment.
In defendant’s bill of particulars, he admitted—
“That the plaintiff and defendant entered into a verbal agreement, by the terms of which the said plaintiff was to erect for the defendant on the defendant’s farm a dwelling house, and do all the carpenter work on said dwelling*36 house for the sum of eight hundred fifty dollars, and that the plaintiff employed workmen to assist him toward the erection of said dwelling house. . . . '
“The defendant denies that he employed other workmen to work on said dwelling house except upon the request of the plaintiff, and that the plans, specifications or the construction of said dwelling house was changed by the defendant or that the agreement between the plaintiff and defendant was ever mutually abandoned and that the plaintiff ever had any agreement, right or authority to proceed with the carpenter work on said dwelling house, except upon the verbal agreement to do all of said carpenter work for the aforesaid! sum of eight hundred fifty dollars.”
Defendant further alleged that plaintiff abandoned the work on November 21, 1922, and thereafter refused to do any further work on the house, although requested to do so by defendant. Defendant alleged that plaintiff’s carpenter work was very inefficient and inaccurate and not worth over fifty cents an hour, and that none of the workmen hired by plaintiff were worth over thirty-five cents per hour. Defendant’s statement of account agreed with that of plaintiff touching the sum paid plaintiff on account, $525, and differed but. slightly on the miscellaneous items of provisions and feed furnished by defendant.
Defendant further alleged that in cash and goods he had overpaid plaintiff the sum of $120.62; and as a counterclaim and set-off defendant alleged that by reason of plaintiff’s abandonment of the work he had been compelled to hire other carpenters and workmen to complete the dwelling house at a necessary outlay of $673.10, of which amount $413.72 was in excess of the total contract price for which plaintiff had agreed to do the work, to the consequent damage of defendant in the sum of $413.72. Defendant also specified other-items of damage and expense chargeable to plaintiff on account of misfitting of door openings, unplumbed partitions, departures from specifications, erroneous measurements, aggregating several hundred dollars — for all of which he prayed judgment for $300, the maximum amount recoverable in the forum where the action was begun.
From the decision of the justice of the peace, the cause was appealed to the district court and there tried de novo without reforming the pleadings. The jury returned a verdict for $119.25 in favor of plaintiff, and judgment was rendered thereon.
Defendant assigns various errors, contending, first, that plaintiff’s amended bill of particulars did not state a cause of action and defendant’s objection to the introduction of evidence should have been sustained. It is quite true that plaintiff’s cause of action was defectively stated. -He alleged that an oral contract had been made
2. The next assigned error relates to the overruling of defendant’s demurrer to plaintiff’s evidence. It presents a more serious problem. Defendant argues that the defects in plaintiff’s cause of action lie deeper than mere want of appropriate recitals in his pleading; that there was a dearth of evidence to prove a cause of action of any sort. Plaintiff had alleged and defendant had admitted that the parties had made an oral contract whereby plaintiff was to do the carpenter ■work for $850. Now, how did the contracting parties get rid of that $850 contract? There was no evidence that it was abandoned by mutual consent. (9 C. J. 723.) Neither was there any evidence that defendant had defaulted in his part of the contract (9 C. J. 725 et seq.), nor that he prevented plaintiff from carrying out his contract to completion. Defendant did tell plaintiff that he was not doing satisfactory work, but that was after plaintiff had quit the job. Defendant testified:
“A. I asked him to come and finish the job.
“Q. Well, what did he say? A. He said, I don’t think I can suit you.
“Q. What did you say? A. I told him I thought so, too.”
Of course the trial court and jury may not have believed that testimony, but it is the only evidence in the record submitted to this court which throws the slightest light on how the $850 contract
Plaintiff makes the sophistical argument that there was no contract because the stipulated bid was $850 if defendant furnished the mill work and $1,000 if plaintiff furnished it. But since plaintiff did not furnish the mill work, nor base a claim on his option to furnish it, the contract price was $850, and it is useless to discuss the alternative proposition. The rights of the parties are controlled by the $850 contract unless it was abandoned by mutual consent or unless defendant committed some act or default which justified plaintiff in rescinding it. Another suggestion advanced by plaintiff in support of the judgment is that it may be justified on the theory of quantum meruit. That doctrine is applicable in cases where the contract is called off by mutual consent (6 R. C. L. 976) and, perhaps, where the contractor is prevented by the owner from completing the contract, although in the latter case his measure of damages might more justly be based upon the contractor’s loss of profits which would have inured to him if he had been permitted to complete his contract. (9 C. J. 729.) The law is tolerant, however, in its attitude towards building contractors who breach their contracts by voluntary noncompletion, and will award them compensation quantum meruit for the work actually done, if it is of some substantial benefit to the owner (6 R. C. L. 974, 975), less a proper set-off for whatever damages the latter may have sustained by the contractor’s failure to complete the contract. Such set-off would neces-' sarily include due allowance for the owner’s expense in employing another contractor or other workmen to finish the job, and in eliminating and correcting defects in the work done by plaintiff. (School District v. Lund, 51 Kan. 731" court="Kan." date_filed="1893-07-15" href="https://app.midpage.ai/document/school-district-no-46-v-lund-7889310?utm_source=webapp" opinion_id="7889310">51 Kan. 731, 33 Pac. 595.) See, also, discussion and citations in Fritts v. Quinton, 118 Kan. 111, 233 Pac. 1036. In this case the contract price was $850. Plaintiff admitted the receipt of $541 in cash and goods on account. That left a margin of $309 for the completion of the house. Plaintiff admitted he did not complete the house. It was completed by defendant at an expense of several