Jenson v. Lee
| Decision Date | 10 July 1903 |
| Docket Number | 13,269 |
| Citation | 73 P. 72,67 Kan. 539 |
| Parties | THOMAS JENSON, SR., v. TOM LEE |
| Court | Kansas Supreme Court |
Decided July, 1903.
Error from Morris district court; O. L. MOORE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONTRACT--Work and Labor--Quantum Meruit. One who is prevented by the wrongful act of his employer from fulfilling a contract to perform work and labor, to be paid for in a share of the profits of the undertaking in which the service is to be rendered, may abandon the contract and recover upon quantum meruit the actual value of his services to the time the contract was broken.
2. CONTRACT--Petition Sufficient. The value of services rendered under such a contract, so terminated, may be recovered under a petition in the form of a common count for the reasonable value of work and labor, where no objection is made to the form of the pleading.
Humphrey & Humphrey, and Nicholson & Pirtle, for plaintiff in error.
J. K Owens, for defendant in error.
OPINION
The petition in this case was in the form of a common count for the recovery of the reasonable value of work and labor performed. It was not attacked by motion or otherwise, and the answer was a general denial. The plaintiff's evidence, if true, established the fact that he had engaged to work on a farm and stock ranch owned, equipped, stocked and managed by defendant; that his compensation was to be one-third of the profits to be derived from the farm and the sale of stock; that his duties embraced all classes of services incident to farming and stock-raising, which he performed for the period of seventeen months without remuneration, when he was obliged to discontinue his work and leave the farm under an order of the defendant so to do, emphasized by threats of personal violence and a display of force; that the order to leave had been repeated several times before it was complied with, and that on each occasion plaintiff had demanded a settlement with the defendant, which the defendant declined to make. The plaintiff also proved the reasonable value of his services. The defendant's evidence denied any contract whatever with the plaintiff and tended to show that plaintiff was working for defendant's son, who claimed a lease of the premises on which the services were rendered.
The court submitted the claims of the respective parties to the jury, with the result that a verdict was returned for the plaintiff, which verdict was approved on a motion for a new trial, and judgment rendered accordingly. The defendant brings the case here and argues that the evidence of plaintiff was wholly outside the issue tendered by the petition, and was at fatal variance with the pleading, because it established a contract for profits and not a service to be compensated by wages.
When the defendant drove the plaintiff away from. the scene of his employment it became impossible for him longer to fulfil his part of the contract. The contract was necessarily terminated by the wrongful act of the defendant. The plaintiff then had two courses open to him -- he could sue upon the contract and recover for its breach, or he could abandon the contract altogether, treat it as wholly non-existent, and recover upon quantum meruit the actual value of his services. Authorities to this effect are abundant.
( Dibol & Plank v. W. & E. H. Minott, 9 Iowa 403, 405.)
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