Cook v. Smith

• Decision Date: 21 October 1880
• Citation: 6 N.W. 259,54 Iowa 636
• Parties: COOK v. SMITH ET AL
• Court: Iowa Supreme Court

6 N.W. 259

54 Iowa 636

COOK v. SMITH ET AL

Supreme Court of Iowa, Des Moines

October 21, 1880

Appeal from Pottawattamie Circuit Court.

THE plaintiff in his petition sought to recover for work and labor performed for the defendants, upon a contract that his compensation should be one hundred and fifty dollars per month.

The answer denied the allegations of the petition, and also stated that the work and labor were performed under a verbal contract, by the terms of which the plaintiff was to receive a certain stated commission on the value of the work, in full compensation for his services. The allegations of the answer were denied. Trial by jury, verdict and judgment for the plaintiff, and defendants appeal.

AFFIRMED.

Sapp Lyman & Ament, for appellants.

No appearance for appellee.

SEEVERS J. ADAMS, CH. J., dissenting.

OPINION

SEEVERS, J.

I.

The defendants asked the court to instruct the jury that the plaintiff must recover on the contract alleged in the petition, and that it was wholly immaterial whether the defendants were indebted to him on some other contract or transaction. This was refused, and the jury instructed that the plaintiff could recover on the contract set up in the answer. The well settled rule is that the plaintiff must recover, if at all, on the allegations of his petition, and if he alleges a special contract he cannot prove the value of his services and recover as if the action had been brought therefor, or on a quantum meruit. Curley v Dean, 4 Conn. 259; Woolsey v. Williams, 34 Iowa 413; Edgerly v. Farmers' Insurance Co., 43 Iowa 587; Fauble & Smith v. Davis, 48 Iowa 462. In these cases, and all others to which our attention has been called, the plaintiff sought to recover on a contract which was denied by the defendant, either specially or by pleading the general issue.

In the present case the defendants in addition to the general denial pleaded another and different contract, by the terms of which the plaintiff was to be compensated in a different manner than under the contract referred to in the petition. It is unnecessary to determine whether the defendants were compelled to so plead. It was clearly competent for them to do so. Code, § 2655.

We have, then, the case where the plaintiff claims to recover under a certain contract, and the defendants saying not so, but under the contract set up by them; or more correctly, perhaps, the defendants assert the plaintiff is to be compensated under the contract set up in the answer. The material difference between the contracts is the manner in which the compensation was to be ascertained.

There was evidence introduced tending to support both of these contracts, and also tending to show a basis for computing the compensation to which the plaintiff was entitled under the contract pleaded in the answer.

Upon the supposition both parties introduced all the evidence they had, and the case was fully and fairly tried, we think the plaintiff should be permitted to recover, although the jury may have found he was only entitled to recover on the contract pleaded by the defendant. The great and primary object, under the Code practice, is to give every litigant a fair trial on the merits of his action or defense, as the same may be stated in the pleadings. Unnecessary delays should be avoided, and this is true as to costs. If the trial has been fair in every respect upon the merits of the controversy, the plaintiff should not be sent out of court or beaten by an instruction to the jury, and thus compelled to bring another action, because of a mistake in the statement of his cause of action in his petition, if the mistake has been cured by any other pleading on file.

In the present case, as a defense, the defendant pleaded, it will be supposed, the only and actual contract. It will further be supposed such contract was established to the satisfaction of the jury, and the plaintiff proved how much he was entitled to recover under such contract; but the defendants say the plaintiff should not recover because we pleaded the true contract, and the plaintiff a false one. To allow this to prevail seems to us, under our system of pleading and practice, to be giving importance to a technicality which should not under the circumstances of this case be tolerated.

It is not claimed the defendants were surprised by the introduction of unexpected evidence, or in any other manner during the trial.

It is possible that under the pleadings the plaintiff could not have introduced evidence showing the amount he was entitled to recover under the contract pleaded by the defendant, if it had been objected to. The abstract discloses the fact that there was at least some evidence of this character introduced. It does not appear any...