Cochran v. Balfe

• Citation: 54 P. 399,12 Colo.App. 75
• Parties: COCHRAN v. BALFE.
• Decision Date: 12 September 1898
• Court: Court of Appeals of Colorado

54 P. 399

12 Colo.App. 75

COCHRAN v. BALFE.

Court of Appeals of Colorado

September 12, 1898

Appeal from district court, Arapahoe county.

Action by P.H. Balfe against C.T. Cochran. There was a judgment for plaintiff, and defendant appeals. Reversed.

William Knapp, for appellant.

E.I Stirman, for appellee.

WILSON J.

Defendant Cochran, was a contractor, and had a contract for the construction of a house in the town of Harman. Plaintiff brought this suit against him to recover the value of certain services alleged to have been rendered and materials furnished by putting in a service pipe, and connecting the same with the water mains at the said house. Defendant answered with a general denial, and also set up, by way of cross complaint, that the plaintiff had contracted with defendant, for a gross consideration of $125, to do all of the plumbing provided for by the specifications in the building contract, which included the putting in of bath tub water-closet, sink, boiler for kitchen, and the making of all connections with the cesspool and vaults as required by the city ordinances, and also to put in the surface pipe, and make connections with the street main; that plaintiff had wholly failed and refused to perform his contract, except as to putting in the surface pipe, and connecting it with the main; and that, in consequence of said breach of contract, defendant had suffered damage in the sum of $52, for which amount he prayed judgment. Plaintiff replied, admitting that he had entered into a contract to do the plumbing work required by the specifications, and for the consideration alleged, but denied that the closet was contained in the specifications. Plaintiff recovered judgment for the full amount claimed by him,--$42.30; and, from this, defendant appeals.

It being admitted that there was an entire contract, and that plaintiff did not perform all of the services required by the contract, the sole question to be determined is: Can he recover upon quantum meruit, as he attempts to do, for a part only of the contract work? The firmly established rule in reference to this was thus clearly set forth by this court in McGonigle v. Klein, 6 Colo.App. 309, 40 P. 467; "In order to entitle the plaintiff to recover at all, he must have shown either performance, or that the contract had been rescinded, or that the performance was rendered impossible by the wrongful acts and conduct of the defendants...