Hood v. Smiley

Decision Date06 June 1894
Citation5 Wyo. 70,36 P. 856
CourtWyoming Supreme Court

Commenced in District Court March 25, 1892.

ERROR to District Court for Carbon County. HON. JESSE KNIGHT Judge.

This was an action by Thomas H. Hood against Robert A. Smiley to recover an alleged balance due for labor and materials in the construction of a house, outbuildings and fences. There was an original verbal contract fixing a certain price for the house according to certain general plans, consisting of a reference to another house already built, and a rough drawing of elevations. No specifications were prepared. The plaintiff claimed that the plan had been abandoned to such an extent that the contract was not applicable, and sought to recover the reasonable value of his services and materials furnished. The changes were alleged to consist in: adding a cellar several feet to the dimensions of the house; higher ceilings change in the inside finish; extra closets; changes in glass for windows; extra doors; change in the arrangement of the rooms. The defendant claimed to have overpaid the plaintiff. Judgment was rendered for the latter for a much less sum than he claimed to be due; and he prosecuted error.

Judgment affirmed.

Potter & Burke, for plaintiff in error.

Burden of proof as to what the contract embraced was upon the defendant who plead it. If a building plan is abandoned, so that it is impossible to trace the contract, a recovery may be had by measure and value. (Chitty on Cont., 613; 2 Addison Cont., sec. 870.) The plaintiff was entitled to a larger judgment than was awarded him, without any reference to his own testimony.

Lacey & Van Devanter, for defendant in error, contended that the contract had not been abandoned, and the judgment was not for a less sum than plaintiff was entitled to.




This is an action brought in the court below by plaintiff in error in which he sought to recover of defendant in error the sum of $ 641.00, which he alleged to be due him as balance upon an account for the reasonable value of building materials, labor and services furnished and performed by him to and for defendant at the latter's request, in the erection of a certain dwelling house, barn, out-buildings, fences and sidewalks, at Rawlins, in this State.

To plaintiff's petition defendant answered, denying that he was indebted to plaintiff in any sum, and as a further defense and by way of counter claim alleged that the dwelling-house was erected under express contract for a stipulated price, viz.: $ 1,450.00, and the other improvements upon an agreement on his part to pay the reasonable value thereof, which he alleged to be $ 886.04, aggregating $ 2,336.04. That through mistake he had overpaid plaintiff the sum of $ 238.96, for which sum defendant prayed judgment.

To this answer and counter claim, plaintiff replied, admitting that originally there was an express contract at a stipulated price for the erection of the dwelling-house, but alleging that in the erection of the house, the original plans and specifications were entirely abandoned by the mutual consent of himself and defendant, and that it was agreed between them that he, the plaintiff, should be paid the reasonable value thereof.

A jury being waived, trial was had before the court sitting as a jury: Upon...

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12 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company
    • United States
    • Wyoming Supreme Court
    • March 24, 1913
    ...Trans. Co., 90 Hun, 274; Lumber Co. v. Sahrbacher, 38 P. 635; Harris v. Sharpless, 202 Pa. St. 243; Hart v. Mfg. Co., 221 Ill. 444; Hood v. Smiley, 5 Wyo. 70; Houlahan v. Clark, 110 Wis. 43; Jennings v. Camp., 13 Johns. 94; Perry v. Quackenbush, 38 P. 740; Smith v. Brady, 17 N.Y. 173; Turne......
  • Willis v. Willis
    • United States
    • Wyoming Supreme Court
    • October 1, 1935
    ...was not affected by any later agreement. 13 C. J. 597; McCurdy v. Dillon, (Mich.) 98 N.W. 746; 4 C. J. 578; 20 R. C. L. 368; Hood v. Smiley, 5 Wyo. 70. Recovery is on an implied contract. Hay v. Peterson, 6 Wyo. 419; Company v. Yarnell, 31 Wyo. 120; In re Walton's Estate, (Iowa) 238 N.W. 57......
  • Tytler v. Tytler
    • United States
    • Wyoming Supreme Court
    • March 19, 1907
    ...Edwards v. O'Brien, 2 Wyo. 493; O'Brien v. Foglesong, 3 Wyo. 57; Ketchum v. Davis, 3 Wyo. 164; Rainsford v. Massengale, 5 Wyo. 1; Hood v. Smiley, 5 Wyo. 70; Hester v. Smith, 5 Wyo. 291; Drug Co. v. Co., 5 Wyo. 510; Jackson v. Mull, 6 Wyo. 55; Wyman v. Quayle, 9 Wyo. 326; Lonabaugh v. Morrow......
  • JA Jones Constr. v. Lehrer McGovern Bovis
    • United States
    • Nevada Supreme Court
    • May 19, 2004
    ...Corp., 172 Cal.App.3d 628, 218 Cal.Rptr. 592, 598 (Ct.App.1985). 27. Paterson, 55 Nev. at 141, 28 P.2d at 500 (quoting Hood v. Smiley, 5 Wyo. 70, 36 P. 856, 857 (1894)). 28. See id. at 141-42, 28 P.2d at 500 (quoting 13 C.J. 601); C. Norman Peterson, 218 Cal.Rptr. at 600. 29. Rudd v. Anders......
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