Holm v. Chicago, M. & P. S. Ry. Co.

• Decision Date: 07 July 1910
• Citation: 109 P. 799,59 Wash. 293
• Court: Washington Supreme Court
• Parties: HOLM v. CHICAGO, M. & P. S. RY. CO. et al.

109 P. 799

59 Wash. 293

HOLM v. CHICAGO, M. & P. S. RY. CO. et al.

Supreme Court of Washington

July 7, 1910

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Action by Martin Holm against the Chicago, Milwaukee & Puget Sound Railway Company, E. Jacobson, and Charles Lindstrom to foreclose a lien. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Hovey & Hale and John H. McDaniels, for appellant.

H. H Field, Geo. W. Korte, and E. E. Wager, for respondents.

GOSE J.

The respondents Jacobson and Lindstrom, having a contract with their corespondent for the construction of a portion of its roadbed in Kittitas county, entered into a contract with the appellant, whereby he agreed to do the construction work for the roadbed to the extent of about 3,600 feet. Failing to reach an agreement with them as to the amount due him upon the completion of the contract, the appellant brought this action to recover an alleged balance, and to establish and foreclose a lien, against the right of way of the respondent railway company, to satisfy the same. This appeal is prosecuted from a judgment of dismissal. The printed contract between the appellant and the respondents Jacobson and Lindstrom fixed the prices for all material removed in the construction work, except cement gravel. There are three principal points presented for determination: (1) A question of pleading. (2) The appellant contends that he is entitled to be paid 77 cents per cubic yard for cement gravel, whilst the respondents insist that he is only entitled to 50 cents. (3) The appellant asserts a right to a lien upon the right of way of the railway company, whilst it insists that the right was waived either expressly or by necessary implication.

A proper understanding of the case requires a brief reference to the pleadings. After pleading the formal matters setting out the contract in haec verba and alleging performance, it is alleged that the respondents Jacobson and Lindstrom agreed with the appellant to classify and pay for cement gravel as solid rock at the rate of 77 cents per cubic yard; that the railway company agreed to pay the respondents the reasonable value of all cement gravel which he removed; and that 'the reasonable worth and value of excavating the material known as cement gravel was and is the sum of seventy-seven cents per cubic yard.' The averments as to the reasonable value and the agreement to pay 77 cents per yard were put in issue by the respondents, answering separately. The respondents Jacobson and Lindstrom alleged affirmatively that, in the course of the work, cement gravel was encountered; that this was not specifically mentioned in the contract; but that before it was removed it was agreed between the appellant and themselves that they would pay him 50 cents per cubic yard for its removal. It is conceded that the contract does not fix the price for the removal of the cement gravel.

The respondents first contend that, under the pleadings, it was not competent for the appellant to prove the reasonable value of removing cement gravel, but that he should have been limited to proof of the contract price; that the evidence admitted over their objection should not be considered, and that it constitutes a fatal variance. As we have seen, the appellant predicates his right to recover both upon an express contract and upon a quantum meruit. A party may present his case in the alternative. The wisdom of the rule is apparent. In many cases a reasonable doubt may exist in the mind of the pleader whether there was an express contract, and, if so, whether his evidence is sufficient to establish it. In such cases a prudent pleader will so frame his pleading as to admit proof and to permit a recovery upon either ground. Globe Light & Heat Co. v Doud, 47 Mo.App. 439; Moore v. Gaus & Sons Mfg Co., 113 Mo. 98, 20 S.W. 975; Beers v. Kuehn, 84 Wis. 33, 54 N.W. 109; Palmer v. Miller, 19 Ind.App. 624, 49 N.E. 975; 9 Cyc. 749; Rem. & Bal. Code, §§ 299-301. In Beers v. Kuehn, it was said: 'In the present case the complaint blends a cause of action upon express contract for the agreed price with a cause of action upon implied contract for the reasonable value of the work. The allegations are entirely sufficient to make a good complaint.' 'Under the code system of pleading, the plaintiff may sometimes allege the same cause of action in two counts, one on the special contract and the other on a quantum meruit, so as to meet any possible state of the proof, and where this is permitted the plaintiff cannot be compelled to elect on which he will go to the jury.' 9 Cyc. 749. The respondents during the trial moved to require the appellant to separate his causes of action, and to elect upon which cause he would rely. There was no error in denying this motion. There was but one cause of action against Jacobson and Lindstrom, consisting of the contract, its performance by the appellant, and its breach by the respondents.

The second question presented is the reasonable value of removing the cement gravel. Respondents contend that, when this element was encountered, the chief engineer of the railway company fixed the price for its removal at 50 cents per cubic yard; that this was communicated to the appellant; that he continued the work for about 15 months and until the completion of...