Burwell Irr. Co. v. Lashmett

• Decision Date: 24 January 1900
• Citation: 59 Neb. 605,81 N.W. 617
• Parties: BURWELL IRR. CO. v. LASHMETT.
• Court: Nebraska Supreme Court

59 Neb. 605

81 N.W. 617

BURWELL IRR. CO.

v.LASHMETT.

Supreme Court of Nebraska.

Jan. 24, 1900.

Syllabus by the Court.

1. A petition for the recovery, quantum meruit, for work and labor performed by the plaintiff for defendant, examined and held to state a cause of action.

2. Where the evidence is conflicting, and the judgment is supported by competent evidence, it will not be disturbed, even though a different conclusion might have been reached.

3. An estoppel, to be available as a cause of action or defense, must be specially pleaded.

Error to district court, Garfield county; Kendall, Judge.

Action by William Lashmett against the Burwell Irrigation Company. Judgment for plaintiff. Defendant brings error. Affirmed.Charles A. Munn and Guy Laverty, for plaintiff in error.

A. M. Robbins and C. I. Bragg, for defendant in error.

HOLCOMB, J.

This action was begun in the lower court for a recovery, quantum meruit, for labor alleged to have been performed by defendant in error for plaintiff in error in the construction of an irrigation ditch. A jury was waived, and trial had to the court, which resulted in favor of the plaintiff below. Defendant brings the case here for review.

While several errors are assigned as ground for reversal, but two are argued in the brief of counsel, and they only will be considered in determining the cause. It is urged that the petition does not state facts sufficient to constitutea cause of action, and that the finding of the trial court is not sustained by any competent evidence. The petition, in substance, alleges: That the defendant is a corporation organized under the laws of the state of Nebraska. That during the month of November, A. D. 1894, the plaintiff had some conversation with one J. M. Morris in regard to work on an irrigation ditch then about to be dug by the defendants, and that on or about the 21st day of November, A. D. 1894, one James Wilson, who was then the engineer and in charge of the construction and excavation of said ditch, inquired of plaintiff if he would go to work on said ditch at once. That plaintiff replied that he would go to work on the following day with quite a force of men and teams, and that he (Wilson) then directed plaintiff where to commence work, and told plaintiff it was necessary he should get to work on the next day in order to save certain water rights of the company. That plaintiff then supposed he was going to work for the said J. M. Morris, and was not advised to the contrary until long afterwards; and alleges that said Morris had no contract on said ditch, but was employed by the defendant as its foreman. That plaintiff and the men under him worked 9 1/2 days, and that the value of the work and labor was $194.87. That payment and deductions to the amount of $8.62 had been made, leaving still due for said work and labor the full sum of $186.25; and that afterwards, and on the 15th day of December, 1894, the said Morris, while in the employ of the said defendant, made and delivered to plaintiff a “time check” as follows: “#6. Burwell, Nebraska, Dec. 15, 1894. Burwell Irrigation Co., to J. M. Morris, Contractor. The bearer, Dug Lashmett, worked to the amount of $186.25 on the Burwell ditch in full. Payable the 15th and 30th of each month. J. M. Morris, Foreman.” That afterwards, and on the 15th day of December, 1894, he presented said time check to the said defendant, and said defendant then and there agreed to pay the same on the 15th day of the next month, saying that it could not then pay the same because no estimate had been made on said work. That afterwards, on the 15th day of January, 1895, and at other times, the time check was presented for payment, which was then and there refused; and that there is now due from the defendant to this plaintiff, on account of the work done and performed, over and above all just credits, the full sum of $186.25, for which, with interest, judgment is prayed. In construing the petition for the purpose of determining its sufficiency, it is only necessary to ascertain whether it contains sufficient material allegations to state a cause of action against the defendant. It is the spirit of modern law to look to the substance, rather than to the form, of a pleading. If its form or manner of construction is objectionable because of indefiniteness or faulty arrangement, such defect may be reached by a proper motion. It is not for this court to hold the petition bad because it may not be a model in construction, or artistic in arrangement. It is provided by the Civil Code that the petition shall contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition. As we analyze the petition under consideration, it states that the plaintiff was employed by one Morris, acting as the foreman of the defendant, to perform the labor mentioned in the petition, that the engineer in charge of the construction of the ditch also procured him to begin work, and directed where the same should be done; that at the time he supposed he was working for Morris as contractor, but later ascertained that Morris had no contract, and that he was in fact acting as foreman for said company in the construction of its ditch; and that plaintiff performed the work for the company, and not for Morris as contractor, and that as foreman he gave plaintiff a “time check,” or a statement of the amount due for work performed, which was accepted by the company, and payment thereof agreed to be made on the 15th day of the month following; that the work was reasonably worth the amount stated; that it was due from defendant to plaintiff,--followed by a suitable prayer for relief. Entertaining, as we do, this view as to a proper construction of the averments in the petition, it is evident that a cause of action is stated therein, and that the objection thereto is not well taken. In Tessier v. Reed, 17 Neb. 105, 22 N. W. 225, it is held that a petition which alleges that the defendant is indebted to the plaintiff for a specific sum then due and payable for goods, wares, and merchandise sold and delivered by the plaintiff, states a cause of action. Applying the rule quoted to the case at bar, it may be said the petition herein alleges that the defendant is indebted to the plaintiff for a sum mentioned which is the reasonable value for work and labor done and performed for the defendant by the plaintiff at its instance and request (through its foreman and engineer in charge), and therefore states a good cause of action. See, also, Rathburn v. Railroad Co., 16 Neb. 441, 20 N. W. 390.

It is urged by counsel for plaintiff in error “that the court erred in finding in favor of the plaintiff and against the defendant, because said finding is not sustained by any competent evidence.” The defendant, in its answer, avers that the services which form the basis of plaintiff's action were performed for J. M. Morris, and not for the defendant; that Morris had a contract with the defendant for excavating certain parts of its ditch at a stipulated price per yard; that said contract was afterwards abandoned, and full settlement made with Morris therefor; that said Morris was never its foreman, and was never in its employ, except under said contract. It is thus made to appear that the only issue is in regard to the party for whom the services were rendered. There is no controversy as to the rendition of the services, or the value thereof, or that the labor was performed in the construction of the ditch belonging to the defendant. The evidence is conflicting, and from it different conclusions may be reached, according to the credibility of the different witnesses and the relative importance attached to different portions of the testimony. The plaintiff testifies that he did the work under the direction of Morris and the engineer in charge; that at the time he supposed Morris had a contract with the defendant company, and that he was working for Morris, but subsequently learned that Morris had a contract, and that the work was being done for the company; that at the...