Limerick v. Lee
| Decision Date | 05 September 1906 |
| Citation | 87 P. 859,17 Okla. 165,1906 OK 58 |
| Parties | LIMERICK v. LEE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A party who has performed only a part of his side of a contract is not in all cases without a remedy, for, although he may have no remedy on the contract as originally made, the circumstance may be such that the law would imply a new contract, and give him a remedy on a "quantum meruit."
[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Work and Labor, §§ 31-33; vol. 10, Contracts, §§ 1493-1507.]
Where the plaintiff entered into a contract with the defendant to furnish the necessary material to paint and paper his house and was prevented from completing the contract by breach of defendant, who receives without complaint and accepts the benefits of whet has been done, the plaintiff may recover according to contract price for what had been done; or where he is to receive a fixed sum for the whole work, then in the proportion which the work done bears to the whole; or where there is no fixed price, then upon a "quantum meruit."
[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Work and Labor, §§ 31, 32.]
A lien statement under oath and a cross-petition filed in one case by a party is competent evidence against such party on the trial of another case as statements or admissions, but are not conclusive, and carry nothing of estoppel in favor of a stranger to proceedings in which they were filed.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 713-725, 1029-1050.]
In an action for material furnished and services rendered for the recovery of the contract price, it is proper to permit plaintiff to amend his petition, stating no new facts constituting a new cause of action, but seeking to recover the value of the material actually furnished and work performed upon a "quantum meruit."
[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686, 687, 690, 691, 702.]
Error from Probate Court, Oklahoma County; before Justice William P. Harper.
Action by A. D. Lee against G. W. Limerick. Judgment for plaintiff, and defendant brings error. Affirmed.
The original petition of plaintiff below substantially alleges that on or about the 1st day of June, 1901, T. H. Harvey, pursuant to contract, was building a dwelling house in Maywood Addition to Oklahoma City for the defendant, G. W. Limerick, and that the plaintiff entered into a contract with Harvey to furnish material and labor to paint and paper the house for $335, and that under that contract he performed $5 worth of work, and that on or about June 25, 1901, he learned that said Harvey was unable to pay for said labor and material, and refused to proceed any further under the terms of said contract; that on that day the defendant, G. W. Limerick, came to said building, and entered into a verbal contract with the plaintiff whereby he agreed and promised to pay him the sum of $330 for furnishing material and labor to complete the painting and papering of said house, said amount to be due and payable upon its completion; and that in pursuance thereof he furnished material and labor, and completed said contract with Limerick on the 19th day of December, 1901, and that there became due and owing to him from the defendant upon that date the sum of $330. In his amended petition the plaintiff repleaded his allegations in reference to his contract with Harvey, his refusal to proceed thereunder, and his contract with the defendant, and negatived the allegation of the original petition that he had completed the contract, and as an excuse therefor set up that the defendant failed to select the paper that was to be used in three of the rooms, and alleged that the material furnished and labor performed under the contract with defendant was worth $310, and for which sum he prayed judgment, with interest. For his answer the defendant below entered a general denial, admitted that the plaintiff entered into a contract with Harvey to furnish the material and labor for the painting and papering of said house, and set up that the plaintiff sought to enforce payment thereunder by filing a subcontractor's lien against the dwelling house, and thereafter sought to foreclose the same, but, because of defects therein, was compelled to dismiss his cross-petition in that suit, and thereupon brought this action against the defendant upon an entirely different contract from the one in which he had theretofore solemnly alleged to have furnished the material and performed the labor upon said house. The issues thus joined were submitted to trial by jury, resulting in a verdict and judgment for plaintiff below in the sum of $380.10, being the amount claimed, with interest. A motion for new trial was overruled, exceptions saved, and case brought here by plaintiff in error, and case made for review.
Snyder & Clark, for plaintiff in error.
John S. Jenkins, for defendant in error.
The plaintiff in error complains: First. That suit was filed on a contract in entirety, and that the petition was amended and judgment prayed for a smaller amount on "quantum meruit." By the strict rules of the common law, full performance was required as a condition precedent to the right of recovery; but the rigor of this rule has been relaxed in many jurisdictions, and the trend of modern decisions is to administer equitable relief, rather than to hold the parties to the very letter of their agreement. In this case, however, the plaintiff below pleaded as an excuse for his failure of performance the refusal of defendant to select paper for three of the rooms according to the terms of the contract, and, under those circumstances, the plaintiff could not be prevented from recovering in this case for material furnished and work performed. He can recover as upon a "quantum meruit." Both the pleadings and the evidence were sufficient for that purpose. The petition stated the facts constituting plaintiff's cause of action, setting forth the contract and materials furnished the labor performed, and their value. The evidence shows that Lee complied with the conditions and requirements of the contract, excepting in so far as he was prevented from so doing by Limerick, and that the latter made no objections at any time, but received and accepted, without complaint, all the benefits accruing from the services rendered and materials furnished by Lee. It is true the defendant below set up in his answer and cross-petition a claim for damage for failure of performance, but offered no evidence in its support, and to that extent abandoned his pleading. The leading case with reference to contracts for personal services sustaining recovery on "quantum meruit" is Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, and the doctrine there laid down is better adapted to do adequate justice to both parties and wrong to neither than those numerous cases which rest upon the somewhat technical rule of the entirety of contract. In McClay v. Hodge, 18 Iowa, 66, Judge Dillon, speaking for the court, said: In Duncan v. Baker, 21 Kan. 99, it was held: "Where a contract is entire, and has been only partially fulfilled, the party in fault may nevertheless recover from the other party for the actual benefit received and retained by the other party less the damages sustained by the other party by reason of the partial nonfulfillment of the contract; and this may be done in all cases where the other party has received benefit from the partial fulfillment of the contract, whether he has so received the same and retained it from choice or from the necessities of the case." Barnwell v. Kempton, 22 Kan. 317; Quigley v. Sumner Co., 24 Kan. 300; Ryan v. Cranston, 27 Kan. 672. Mr. Parsons, in his work on Contracts, says: 2 Pars. Cont. (6th Ed.) 523. Mr. Field, in his work on Damages, says that: "The doctrine now generally recognized in case of part performance of a contract for personal service is that, if the employer accepts the benefit of what has been done, whether voluntarily or from the necessities of the case, the employé may recover according to contract price for what has been done; or where he is to receive a fixed sum for the whole work, then in the proportion which the work done bears to the whole work; or where there is no price fixed, then upon a quantum meruit; from which, however, there must be deducted whatever damages may have resulted to the employer from the failure to fully perform the contract by the employé." ...
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