Daniels v. McDaniels
| Citation | 171 S.W. 14,184 Mo.App. 354 |
| Parties | FRED DANIELS, Respondent, v. ROBERT McDANIELS, Appellant |
| Decision Date | 23 November 1914 |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.
Judgment affirmed.
John S Boyer and F. B. Ellis for appellant.
Stigall & Otis for respondent.
--Plaintiff bored a well for defendant for which the latter refused to pay, whereupon this action was instituted by filing a petition in two counts; the first on a specific contract for the work under certain conditions and for a certain price and the second on a quantum meruit. The judgment in the trial court was for the plaintiff on the latter count.
There was evidence in plaintiff's behalf that he made a contract with defendant's father for boring a well on defendant's farm and at the same time contracted with the father for boring a well on the latter's farm nearby. There was evidence further tending to prove that plaintiff guaranteed a strong well of water and that unless the boring produced such a well he was not to charge anything. On the other hand there was evidence that no guaranty was made. Defendant insists that the evidence showed a specific contract for boring the well and the price, in addition to the guaranty. Plaintiff, for all practical purposes, concedes by his instructions that there was a price agreed upon of $ 1 per foot for drilling through rock and fifty cents per foot through dirt and of fifty cents per foot for necessary casing. "Plaintiff's instructions declared that if, at defendant's instance and request, he did the boring and furnished the material, the law presumed defendant intended to pay the reasonable value of the boring and the material and he was entitled to a verdict for a sum not exceeding the contract price; unless the jury found that there was a guaranty by plaintiff of a strong well with a lasting flow of water. Defendant had an instruction also submitting the proposition of guaranty of a lasting flow of water and directing a verdict for him if the jury believed such guaranty was made. So the jury must have found that plaintiff did not agree and guarantee that there should be a well with a strong and lasting flow of water, and must have found that $ 476 was a reasonable charge and that it did not exceed the price agreed upon.
Recurring to the fact that there was a specific contract for the well and the price thereof, defendant insists that there can be no recovery on a quantum meruit, but that plaintiff is confined to an action on the contract as declared on in the first count and afterwards abandoned. This is not a correct view. When the contract has been fully performed and nothing remains but payment of the price, an action in quantum meruit may be maintained, the recovery being limited within the contract price. [Williams v. Ry. Co., 112 Mo. 463, 491; Mansur...
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