Hecht v. Stanton
| Decision Date | 01 February 1896 |
| Parties | HECHT v. STANTON |
| Court | Wyoming Supreme Court |
Original Opinion of November 19, 1895, Reported at: 6 Wyo. 84.
Judgment affirmed.
Burke & Fowler for plaintiff in error.
On Petition for Rehearing: It is apparent that the court bases its decision upon the right of defendant in error to recover upon the contract. If so, then the contract must be held not to have been avoided. It specifically required that the work should be performed to the entire satisfaction of the engineer in charge. The evidence shows that the engineer did not approve or accept the work, but refused to do so (Authorities cited supra.) No other measurements than those of Owen can be taken into consideration.
All the points upon which a rehearing is asked were fully considered on the original hearing, and on reconsideration now we are satisfied the decision was correct.
One point of the petition for rehearing deserves special mention. It is that the court erred "in holding that upon taking the estimate made before the work was done as a basis, the jury have made a small deduction from what the defendant in error would be entitled to." Counsel, in the computation upon this point, has fallen into the error of omitting the very material matter of interest. We repeat that there is no conflicting evidence as to whether plaintiff in error accepted the ditch. There is evidence from which the jury might well find that plaintiff in error accepted the ditch, and waived the condition of the contract that it should be inspected and approved by the engineer, Owen.
We are not informed by the record whether the jury rejected the contract or not. There is ample evidence to sustain the verdict whether they did reject it or did not. Defendant in error is not paid by the verdict and judgment for the full amount of the excavation which he did at the contract price of ten cents per cubic yard. And this is the price he claims in his petition as on a quantum meruit, although he testifies that some of the work was worth twenty-five cents per cubic yard.
As we understand the argument on behalf of plaintiff in error, the position is taken that defendant in error must recover upon his quantum meruit or not at all, although the evidence may show that he is entitled to recover under the contract set up by ...
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