Ford v. Gilbert

• Citation: 397 S.W.2d 41
• Parties: Ralph FORD et al., Appellants, v. T. O. GILBERT, Appellee.
• Decision Date: 10 December 1965
• Court: United States State Supreme Court — District of Kentucky

Page 41

397 S.W.2d 41

Ralph FORD et al., Appellants, v. T. O. GILBERT, Appellee.

Court of Appeals of Kentucky.

Dec. 10, 1965.

David R. Reed, Reed & Hines, Paducah, for appellants.

George E. Overbey, Overbey & Overbey, Murray, Sam Boyd Neely, Martin, Neely & Reed, Mayfield, for appellee.

WADDILL, Commissioner.

We are asked on this appeal whether the trial judge erred in awarding appellee, T. O. Gilbert, $2,470.62 as the balance due for services rendered appellants and in not specifically ruling on a counterclaim.

Appellants, Ralph Ford, Reuben Ford and Lucien Holmes d/b/a Ford-Holman Construction Company, were the successful bidders on a state road contract. Subsequently appellants orally contracted with appellee for him to perform certain work on 1.66 miles of this road. This action was filed by appellee to recover $6,712.76 allegedly owed for certain work done under this contract and under supplemental agreements. Appellants denied that they owed appellee any money and by counterclaim sought to recover the reasonable rental value of equipment furnished appellee on this job, for their costs in completing the work he left undone and for over-payments they made to appellee, a total sum of $8,387.60.

The trial court sitting without a jury found that the parties had contracted for certain work to be done by appellee, that no agreements were made for supplemental work or for rental of equipment, and that appellee completed the following work and was entitled to the following remunerations:

                Pipe work                                $  830.00
                Clearing of 1.66 miles of right-of-way    6,175.30
                Earthwork for 1.66 miles of road          1,948.90
                Spreading of 2300 tons of gravel          1,840.00
                Removal of pipe                              21.00
                Removal of concrete                          47.50
                                                        ----------
                                                        $10,862.70
                

He further found that appellee had been paid $8,392.08, leaving a balance due of $2,470.62. Judgment was entered against appellants for this latter amount.

It is contended for reversal that (1) the agreed rate for earthwork was $3,000.00 per mile, not $3,750.00 as found by the judge, (2) the allowance for pipe work and for removal of pipe and concrete erroneously exceeds the amount sought by the pleadings, (3) only 1 mile of earthwork, not 1.66, was performed, and (4) appellants were entitled to $5,400.00 on their counterclaim as the reasonable rental value of the equipment furnished appellee.

We consider the contentions in the order presented. Appellee testified that he was told by appellants he would receive for the earthwork whatever their state contract called for, 'but it was not to be less than $3,000.00 per mile.' Ralph Ford, one of the appellants, testified the state contract price was $3,750.00. The trial judge's finding that appellee was to receive the latter rate of compensation is supported by substantial evidence and will not be reversed.

The second contention is that appellee may not recover in excess of the amount sought by his pleadings. Appellee sought $855.00 for pipe work, $14.60 for removing pipe and $31.60 for removing concrete. The trial judge allowed (supra) appellee to recover more than was asked on these items.

The second sentence of Civil Rule 54.03 provides:

'* * * Except as to a party against whom a judgment is entered by default for want of appearance, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.'

This rule is identical to Federal Rule 54(c) which has often been interpreted to permit recovery of sums greater than sought by the pleadings. Duke v. Sun Oil Co., 320 F.2d 853, (5th Cir.); Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60, (2nd Cir.); Wendy v. McClean Trucking Co., 279 F.2d 958, (2nd Cir.); Neff v. Western Cooperative Hatcheries, 241 F.2d 357, (10th Cir.). Other state jurisdictions which have adopted this rule have likewise interpreted it so that the pleadings lose much of the restrictive force they formerly had. Bechtel v. Benson, 94 Ariz. 350, 385 P.2d 225; Wilson v. Interior Airways, Inc., Alaska, 384 P.2d 956; Magill v. Lewis, 74 Nev. 381, 333 P.2d 717.

The reason for adopting this rule and the necessity of its proper application as evinced in the above cited cases is succinctly set forth in 3 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.), Section 1194 at page 35 as follows:

'The second sentence of Rule 54(c) provides that in non-default cases the judgment is not limited in kind or amount by the demand for relief, but may include whatever relief the successful party is entitled to, regardless of the demand. This provision implements the general principle of Rule 15(c), that in a contested case the judgment is to be based on what has been proved rather than what has been pleaded. ...