Cozad v. Elam

• Decision Date: 14 November 1905
• Citation: 91 S.W. 434,115 Mo. App. 136
• Parties: COZAD v. ELAM.
• Court: Missouri Court of Appeals

91 S.W. 434

115 Mo. App. 136

COZAD v. ELAM.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

1. WORK AND LABOR—PERFORMANCE OF LABOR UNDER VOID CONTRACT—RECOVERY ON QUANTUM MERUIT.

Where services have been rendered under a contract unenforceable because of the statute of frauds, and the person for whom they have been performed refuses to perform his part of the contract, he is liable on quantum meruit.

2. SAME—MEASURE OF RECOVERY.

Where services have been performed under a contract whereby they were to be paid for by the conveyance of land, and, on the refusal of the owner to convey the land on the ground that the contract was within the statute of frauds, the person performing the service brings an action on quantum meruit, the measure of recovery is the reasonable value of the services, regardless of the value of the land.

Appeal from Circuit Court, Barry County; Henry C. Pepper, Judge.

Action by S. M. Cozad against Richard Elam. From a judgment for defendant, plaintiff appeals. Reversed.

The statement of the cause of action filed before the justice of the peace is as follows:

"Plaintiff for cause of action states that defendant is justly indebted to him on the following account:

                1903.  To 4,500 rails made for him
                        and placed in the fence......  $86 25
                1903.  Work building fence and hauling
                        rails of fence for ½
                        mile .........................   30 00
                                                       _______
                       Total ......................... $116 25
                

"Plaintiff states that the work done and the materials furnished defendant as above set forth was at defendant's special instance and request, and that they were worth the amounts charged therefor, and defendant promised and agreed to pay for same, but has wholly neglected and refused to do so. Wherefore plaintiff prays judgment against defendant for the said sum of $116.25 and costs of suit."

Upon a trial de novo in the circuit court, the following facts were developed in evidence on behalf of plaintiff. The plaintiff and defendant owned adjoining farms in Barry county. Plaintiff, desiring a road from his land across a portion of that of defendant, approached him on the subject, whereupon a verbal agreement was entered into between the parties, whereby plaintiff was to build about one-fourth mile of rail fence for the defendant on the defendant's farm, and in consideration therefor, defendant agreed to convey to plaintiff by deed all of a certain piece of inferior land containing about 7 acres, lying outside of such proposed fence, and on this land plaintiff could build and own the roadway which he desired. In accordance with this agreement, plaintiff commenced building the fence, and before it was completed the original agreement was modified at the instance of defendant, whereby plaintiff agreed to build nearly one-half mile of fence for the same consideration, instead of one-fourth mile, as originally agreed upon. Toward carrying out the original and modified agreements, plaintiff hired men to make and haul the rails and erected the fence in accordance therewith in good workmanlike manner, and defendant made no complaint thereabout, but persistently refused to carry out his part of the contract by executing the deed mentioned. After several attempts on plaintiff's part to adjust the matter, one of which was a proffer to pay defendant $2.50 per acre cash in addition for the small piece of land, this suit was brought as of quantum meruit for the value of the labor and services performed. The evidence showed full performance of all the conditions of the contract on the part of plaintiff and liberal conduct and propositions on his part to the end of obtaining the deed to which he was in good conscience entitled under the arrangement. The evidence also showed, in detail and by items, the value of the rails, labor, and amounts paid by plaintiff in and about the building of the fence, which in total amounted to $102. At the conclusion of the plaintiff's case, the court peremptorily instructed a finding for the defendant, presumably on the theory that, inasmuch as a specific contract was shown upon the trial, the measure of recovery would be, not the value of the services, etc., rendered, but, on the contrary, would be the value of the land, which was the compensation agreed upon by the parties, and, the value of the land not being shown, no recovery could be had. Plaintiff appeals, and the case is here for review.

Davis & Steele, for appellant. E. C. Frost, for respondent.

NORTONI, J. (after stating the facts).

1. Inasmuch as the contract between the parties was not in writing and it was for the purchase of land, appellant saw fit to treat it as incapable of specific enforcement, and instituted his suit on the quantum meruit for the value of the services rendered by him thereunder. The law is abundantly well settled that in cases of this nature, where the services have been rendered under a contract unenforceable because of the statute of frauds, and the adverse party either refuses or becomes unable to perform his part, the party having rendered the services can sue on quantum meruit for the value of such services. Browne on Stat. of Frauds (5th Ed.) 1895, § 111; 29 Am. & Eng. Ency. Law (2d Ed.) 839; 2 Reed on Stat. of Frauds, § 623; Parker v. Niggeman, 6 Mo. App. 546; Greer v. Greer, 18 Me. 16; Smith v. Smith's Adm'rs, 28 N. J. Law, 208, 74 Am. Dec. 49; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Howe v. Day, 58 N. H. 516; Kidder v. Hunt, 1 Pick. (Mass.) 328, 11 Am. Dec. 183; Lockwood v. Barnes, 3 Hill (N. Y.) 128, 38 Am. Dec. 620; Patten v. Hicks, 43 Cal. 509. This doctrine runs through all the books. The principle underlying it is that parol contracts of this class, although not legally, are morally, binding, and payments made under them cannot be reclaimed so long as the party receiving such payment is not in fault. But, if he repudiates the contract, a right of reclamation upon the principles of equity and good conscience accrues to the other party. This doctrine is eminently just and permeates our entire jurisprudence under this head. It is unnecessary to accumulate authorities thereon. Greer v. Greer, 18 Me. 16; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351.

2. The principal point in respondent's brief in support of the action of the trial court is that, inasmuch as the contract was developed on the trial, and from this it appeared that the amount of appellant's compensation for the services rendered was to be the land, then the value of the land, and not the reasonable value of the services rendered, is the true measure of his recovery; that as there was no evidence introduced tending to show the value of the land, no recovery could be had by him. It is true that there are a number of cases in this state, commencing with Mansur v. Botts, 80 Mo. 651, and Plummer v. Trost, 81 Mo. 425, holding that in suits on a quantum meruit, if a specific contract is developed on the trial, it will control and limit the amount of the recovery, and that the recovery is for the value of the services rendered, not to exceed the contract price. This doctrine has become firmly fixed in our law in the class of cases to which it is applicable, as is evidenced by Crump v. Rebstolk, 20 Mo. App. 37, Suits v. Taylor, 20 Mo. App. 166, Fox v. Palace Car Co., 16 Mo. App. 122, St. Joseph Iron Co. v. H. K. Halverson & Co., 48 Mo. App. 383, and a large number of other cases too numerous to collate here. There is no doubt that this doctrine is not only the settled law of this jurisdiction, but that it is eminently fair and just in a case where the plaintiff has performed his part of the contract which is enforceable, and then, for some reason, sees fit to abandon the contract and pursue his remedy by quantum meruit rather than by a suit on the specific contract, for it limits and holds him to the agreement under which he undertakes to perform, in so far as the admeasurement of his compensation is concerned. Indeed, we could conceive of nothing more unjust than a rule contrary to this, which would permit a person to obtain the employment under a contract at a stipulated price and then, after having performed, possibly at a loss, renounce the contract and sue as of quantum meruit for the reasonable value of the services and recover such value, thereby, in many instances, rendering the adverse party liable to compensate him largely in advance of the amount he had contracted to pay and possibly in excess of the amount for which he could have obtained more competent men to have performed the service.

This doctrine, however, is not applicable to the case at bar. Here we have a state of facts where the contract itself is unenforceable at law because of the inhibition of the statute of frauds, and, further, the party seeking a recovery is not voluntarily renouncing or abandoning the contract under which the services were performed and seeking to...