Burke v. McKee

• Court: Oklahoma Supreme Court
• Writing for the Court: WILLIAMS
• Citation: Burke v. McKee, 304 P.2d 307 (Okla. 1956)
• Decision Date: 27 November 1956
• Docket Number: No. 37265,37265
• Parties: E. J. BURKE, Plaintiff in Error, v. E. R. McKEE, Defendant in Error.

Page 307

304 P.2d 307

1956 OK 318

E. J. BURKE, Plaintiff in Error, v. E. R. McKEE, Defendant in Error.

No. 37265.

Supreme Court of Oklahoma.

Nov. 27, 1956.

Syllabus by the Court.

1. A party who has performed only a part of his side of a contract is not in all cases without a remedy, for, if the other party has derived a benefit from the part performed which it would be unjust to allow him to retain without paying anything therefor, the law generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonable worth and allows a recovery of that quantum of remuneration.

2. In an action for services rendered for the recovery of the contract price, it is proper to permit plaintiff to amend his petition, stating no new facts constituting a new cause of action, but seeking to recover the value of the work actually performed upon a 'quantum meruit.'

Appeal from the District Court of Sequoyah County; E. A. Summers, judge.

Action by E. R. McKee against E. J. Burke to recover for work done in clearing certain land of defendant resulting in a judgment for plaintiff from which defendant appeals. Affirmed.

Roy Frye, Sr. and Roy Frye, Jr., Sallisaw, for plaintiff in error.

J. Fred Green and Fred D. Green, Sallisaw, for defendant in error.

WILLIAMS, Vice Chief Justice.

This action was brought by E. R. McKee, hereinafter referred to as plaintiff, against E. J. Burke, hereinafter referred to as defendant, to recover for work done in knocking down timber and decking said timber in windrows on land belonging to defendant, pursuant to an oral contract between the parties. The cause was tried to the court, a jury being waived, and judgment rendered for plaintiff on a quantum meruit basis in the amount of $1,154. Defendant's motion for new trial was overruled and he appeals.

As his first proposition of error, defendant contends that the judgment of the trial court is not reasonably supported by competent evidence.

While there is some conflict in the evidence, there are substantial portions thereof concerning which there is little or no disagreement. It is undisputed that plaintiff and defendant entered into an oral agreement whereby plaintiff was to knock down and windrow the timber on certain land belonging to defendant and to level such land. Plaintiff testified that the agreement was that he was to receive $12.50 per acre for knocking down the timber, $12.50 per acre for windrowing it, and $5 per acre for leveling it; that he had knocked down all the timber he was supposed to, which he estimated at 84 acres of timber; that he had windrowed approximately 8 acres of the timber and had not leveled any of it. Plaintiff sought to recover for the 84 acres of timber knocked down and the 8 acres windrowed at the rate of $12.50 per acre.

Defendant's testimony and evidence was to the effect that the agreement was that plaintiff was to bulldoze all trees and brush, windrow the timber so it could be burned, and root plow and level the land for a total price of $30 per acre to be paid in full when the job was completed; that plaintiff had knocked down a little over 77 1/2 acres of timber and had windrowed almost 8 acres, but had failed and refused to windrow the rest of the timber and had not leveled or cleared any of the land at all; that defendant had not paid plaintiff because plaintiff had refused to complete his part of the contract.

The gist of defendant's contention seems to be that the contract between the parties was an entire and indivisible contract and that since plaintiff did not complete the entire contract there can be no recovery thereon. Such contention would be well taken had the trial court rendered judgment for plaintiff on the contract. Dunn v. T. J. Cannon Co., 51 Okl. 382, 151 P. 1167; Meek v. Daugherty, 21 Okl. 859, 97 P. 557. The trial court, however, did not render judgment for plaintiff on the contract, but rather entered judgment for plaintiff on a quantum meruit basis. In the opinion in Limerick v. Lee, 17 Okl. 165, 87 P. 859, 860, the court said:

'The leading case with reference to contracts for personal services sustaining recovery on 'quantum meruit' is Britton v. Turner, 6 N.H. 481, 26 Am.Dec. 713, and the doctrine there laid down is better adapted to do adequate justice to both parties and wrong to neither than those numerous cases which rest upon the somewhat technical rule of the entirely of contract. In McClay v. Hodge, 18 Iowa, 66, Judge Dillon, speaking for the court, said: 'Referring to the doctrine laid down in Britton v. Turner, 6 N.H. 481, 26 Am.Dec. 713, * * * its principles have been gradually winning their way into professional and judicial favor. It is bottomed on justice, and is right upon principle, however it may be upon the technical and more liberal rules of the common law as found in the older cases.' In Duncan v. Baker, 21 Kan. 99, it was held: 'Where a contract is entire, and has been only partially fulfilled, the party in fault may nevertheless recover from the other party for the actual benefit received...