Associated Wrecking and Salvage Co. v. Wiekhorst Bros. Excavating & Equipment Co.

• Decision Date: 10 June 1988
• Docket Number: No. 86-552,86-552
• Citation: 424 N.W.2d 343,228 Neb. 764
• Parties: ASSOCIATED WRECKING AND SALVAGE CO., a Corporation, Appellee, v. WIEKHORST BROTHERS EXCAVATING & EQUIPMENT CO., a Partnership, Appellant, Universal of Omaha Casualty Insurance Company, a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 343

424 N.W.2d 343

228 Neb. 764

ASSOCIATED WRECKING AND SALVAGE CO., a Corporation, Appellee, v. WIEKHORST BROTHERS EXCAVATING & EQUIPMENT CO., a Partnership, Appellant, Universal of Omaha Casualty Insurance Company, a Corporation, Appellee.

No. 86-552.

Supreme Court of Nebraska.

June 10, 1988.

Syllabus by the Court

1. Verdicts: Appeal and Error. Generally, a jury's verdict will not be set aside unless it is clearly wrong.

2. Pleadings. The statute concerning the amendment of pleadings should be liberally construed to permit amendments when they are proposed at an opportune time and will be in the furtherance of justice.

3. Pleadings: Proof. Pleadings may not be amended at certain stages so as to change the issues or the quantum of proof as to any issue.

4. Pleadings: Appeal and Error. The decision to allow or deny amendments to the pleadings after trial has begun rests in the discretion of the trial court. Error may not be predicated on the exercise of this discretion in the absence of a showing of prejudice.

5. Pleadings: Motions for Continuance: Appeal and Error. If an amendment to a pleading during trial is permitted which does in fact create a prejudicial situation, no error on appeal on that ground may be urged absent a timely request for continuance.

6. Contracts: Quantum Meruit. Generally, there cannot be an express and an implied contract for the same thing existing at the same time.

7. Contracts: Quantum Meruit. It is only where parties do not expressly agree that the law interposes and raises a promise.

8. Contracts: Quantum Meruit: Pleadings. An implied contract on a point not covered by an express contract is not superseded by the express contract, and if each arises out of the same transaction, they may be pleaded and tried together.

9. Directed Verdict: Appeal and Error. This court will not set aside or direct a verdict in cases where the evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide the issues of fact.

Dan D. Stoller, Elkhorn, for appellant.

John W. Steele of Schumacher & Gilroy, Omaha, for appellee Associated Wrecking and Salvage Co. HASTINGS, C.J., WHITE and FAHRNBRUCH, JJ., and WOLF and McGINN, District Judges.

HASTINGS, Chief Justice.

This was an action involving oral contracts. The district court found in favor of the plaintiff both on express contracts and on an action in quantum meruit, and for the defendant Wiekhorst Brothers Excavating & Equipment Co. on its cross-petition for liquidated damages assessed against it by the city of Omaha for failure to complete its contract with the city on time. Defendant appeals, assigning as error the action of the trial court in allowing plaintiff to amend its pleading during trial to add a cause of action for quantum meruit and in failing to grant a judgment on its cross-petition in the amount of $3,700, notwithstanding the verdict of $1,700. We affirm.

During the year 1984, the defendant was the general contractor on a sewer project with the city of Omaha in the 99th and Frederick Streets area. By oral contracts the plaintiff agreed to lease to the defendant a crane with services of an operator to lay concrete pipe in an open ditch or creekbed for the sum of $10,000, a front-end loader Caterpillar for $3,000 for 1 month, and the use of a wrecking bar. Plaintiff's evidence would establish that its responsibility was simply to lift pipe sections off a truck and lower them into a preprepared ditch, under certain conditions. The defendant's evidence, on the other hand, was to the effect that plaintiff was to do the whole job, as far as the crane usage, for $10,000, no matter what it took to do the job. This was to include rental of the crane, the operator, fuel, oil, grease, and any help to move the crane in and out of the jobsite, "the whole shooting match."

The crane and crane operator were placed on the jobsite as agreed, but numerous delays in performing the job were encountered. The first two pipes were placed in the ditch, but had to be removed because they did not fit together. This was apparently caused by a defect in the manufacturing of the pipes. Plaintiff's owner told the defendant that this removal of improperly fitted pipes would cost extra because he was paid to lay pipes, not to remove and re-lay them.

There was also evidence that approximately six pipes were laid, but they sunk into the ditch or creekbed and had to be removed and replaced. This was due to an improper design of the rock bed, having called for 1 1/2-inch rock instead of 3-inch rock. The crane initially sat at the jobsite for several days, and during the delay to improve the bed, the crane was removed from the job to another jobsite. The crane was not returned to the storm sewer project for several weeks.

Later, a dispute arose among the workers. Plaintiff's crane operator claimed he was not receiving the help from defendant's workers which he was supposed to receive and walked off the job. He returned to work the next morning, but did not operate the crane as there was no one to help him and the defendant's manager did not want him there.

Ultimately, the defendant secured the services of another crane and completed the job. However, the completion of the project was 37 days late, and the defendant was charged $100 per day for late completion under the terms of its contract with the city.

Plaintiff claimed that it had completed approximately 50 percent of the job and billed the defendant for $5,000 for crane rental, $1,000 for setting and resetting the pipe that did not fit (8 hours at $125 per hour), $1,500 for extra work in removing and relaying pipes due to the improper bed (12 hours at $125 per hour), and $3,000 for Caterpillar rental. It was defendant's contention that plaintiff only completed approximately 30 percent of the job.

Several sets of pleadings have been filed. However, basically, the plaintiff claimed $3,000 for Caterpillar rental, $7,500 for crane rental, and $45 for use of a wrecking bar, all according to specific rental contracts. The defendant, in its answer and cross-petition, alleged the failure of the plaintiff to substantially or materially perform its contract, and further sought reimbursement of the liquidated damages charged it by the city of Omaha.

During the course of the trial, and following plaintiff's rest, plaintiff was given leave to file a third amended petition alleging a cause of action in quantum meruit for its extra work in removing and relaying pipe on the two occasions previously stated in the fair and reasonable sum of $2,500. This was permitted over the objection of the defendant on the ground of surprise because it increased the prayer of the petition.

Although there were disputed questions of fact throughout the trial, they were decided adversely to the defendant by the jury. A jury's verdict will not be set aside unless it is clearly wrong. Havlicek v. Desai, 225 Neb. 222, 403 N.W.2d 386 (1987). In any event, no error was assigned in this regard.

Confining our discussion to the two errors raised, we first consider the claim relating to the amended petition. That really presents two questions in one. First, Neb.Rev.Stat. § 25-852 (Reissue 1985) provides in relevant part: "The court may ... in furtherance of justice, and on such terms as may be proper, amend any pleading ... by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading ... to the facts proved." This statute concerning amendment of pleadings should be liberally construed to permit amendments when they are proposed at an opportune time and will be in the furtherance of justice. Bittner v. Miller, 226 Neb. 206, 410 N.W.2d 478 (1987). Pleadings, however, may not be amended at certain stages so as to change the issues or the quantum of proof as to any issue. Id. The decision to allow or deny such amendment rests in the discretion of the trial court. Id.; Chlopek v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986); West Town Homeowners Assn. v. Schneider, 215 Neb. 905, 341 N.W.2d 588 (1983).

Error may not be predicated on the exercise of this discretion in the absence of a showing of prejudice.

"[A] party [who] has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue ... has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured."

Poppe v. Petersen, 221 Neb. 877, 884, 381 N.W.2d 534, 538 (1986).

The defendant objected to the amendment, not because it changed the issues, but simply because it increased the amount of the prayer for relief. No legitimate claim of prejudice was demonstrated by the defendant. If an amendment to a pleading during trial is permitted which does in fact create a prejudicial situation, no error on appeal may be urged absent a timely request for continuance on that ground. See Schroll v. Fulton, 213 Neb. 310, 328 N.W.2d 780 (1983).

The other part of the objection is somewhat different. That relates to defendant's claim that plaintiff was permitted to pursue a remedy both on an express contract and on a claim in quantum meruit. The defendant asserts that a party cannot plead an express contract and then prove and recover on quantum meruit, because an express contract precludes the existence of a contract implied by law or quasi-contract.

In support of its contention, the defendant cites Siebler Heating & Air Conditioning v. Jenson, 212 Neb. 830, 833, 326 N.W.2d 182, 184 (1982), where we stated that "there cannot be an express and an implied contract for the same thing existing at the same time." We found that Siebler was "precluded from now seeking to have the court, on appeal, create a quasi-contract in lieu of the express contract upon which recovery was originally sought." (Emphasis...