Oaks v. Short

• Decision Date: 07 February 1927
• Docket Number: No. 4056.,4056.
• Citation: 292 S.W. 738
• Parties: OAKS v. SHORT et al.
• Court: Missouri Court of Appeals

292 S.W. 738

OAKS v. SHORT et al.

No. 4056.

Springfield Court of Appeals. Missouri.

February 7, 1927.

Rehearing Denied March 31, 1927.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Asa D. Oaks against B. 0. Short and another. Judgment for plaintiff, and defendants appeal. Affirmed.

J. E. Sater, of Monett, for appellants.

W. D. Jones and Lorts & Breuer, all of Rolla, for respondent.

BAILEY, J.

This is an action on an express contract for work and labor in plastering a public school building in St. James, Mo. Defendants were the general contractors employed by the board of education. Plaintiff was employed by defendant in the latter part of the year 1923, to do the plastering. The cause originated in Barry county, Mo., but was transferred to Jasper county on a change of venue, where it was tried in June, 1925, resulting in a verdict and judgment for plaintiff in the sum of $400, from which defendants have appealed.

At the conclusion of the case, defendant offered a demurrer to the evidence, the refusal of which is assigned as error. Plaintiff's petition contains the following allegations:

"The said defendants employed plaintiff to plaster all the rooms, halls, and corridors in the first and second stories of said high school building, and that it was agreed and understood between plaintiff and defendants at the time that plaintiff would furnish all laborers and plasterers necessary for the preparation and putting on of the material and plastering, and that plaintiff was to receive for said services the usual and customary price for laborers and plasterers for such work that, pursuant to said contract and agreement, the plaintiff employed certain laborers and plasterers hereinafter named to assist him in doing said work, and that said laborers, plasterers, and the customary prices for their services, together with the time each worked, are as follows."

The names of the men employed and the number of hours each worked, including 270 hours for plaintiff at $1.25 per hour, and a grand total for all labor aggregating $897.49, are then set out. The answer was a general denial.

Plaintiff testified in regard to the contract as follows:

"He (one of defendants) says, 'What will you do?' I says, 'If you will put the mortar on the board for me, I will do it for 20 cents a yard.' He says, 'I won't do that;' but he says, `I tell you what I will do; I will let you go ahead and take the job and run it, and, whenever we get done, we figure up this building, and, if you don't make plasterer's wages at 20 cents a yard, I will pay you till you do; I will pay you until you are satisfied.'"

On cross-examination, plaintiff testified as follows:

"Q. Now the contract you say that was eventually made was, you were to do the work at 20 cents per yard, and, if it did not pay your wages, he was to pay you until you were satisfied? A. Pay me until I got plasterer's wages.

"Q. You testified a while ago until you were satisfied? A. Yes, sir.

"Q. That is the contract? contract.

"Q. When you did start on that contract on the basis of 20 cents per yard? A. Yes, sir; 20 cents per yard."

Plaintiff's testimony as to the above contract was corroborated by two other witnesses. Defendant claims there was a total failure of proof as to the contract alleged in the petition; that plaintiff has declared upon an express contract to pay the usual and customary wages while the proof is a conditional contract that plaintiff was to do the work at 20 cents per yard, and, if he did not make wages, he was to be paid until he did, or until he was satisfied.

It is argued by plaintiff that at most there is only a variance between the allegata and the probata, and that, since defendants failed to file an affidavit of surprise as provided by section 1272, R. S. Mo. 1919, they are now in no position to ask for a reversal of the judgment upon that ground. The question then is whether there is simply a variance or a total failure of proof of the allegations of the petition in their entire scope and meaning. If a variance only, plaintiff's position is correct.

It has always been the law of this state, as urged by defendants, that a party cannot state one cause of action, and, if that prove unfounded, ask to substitute another cause-to be tried. Robinson v. Rice, 20 Mo. 229; Harris v. R. R. Co., 37 Mo. 307; Michael v. Kennedy, 166 Mo. App. 462, 148 S. W. 983; Walker v. Bohannan, 243 Mo. 119, 147 S. W. 1024. While that is true, it is equally well settled that, where a contract has been fully performed, as here, and nothing remains to be done except payment, a party may sue on quantum meruit and use the contract made as the basis for computing the amount owed for the work. Mansur v. Botts, 80 Mo. 651; Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98, 107, 20 S. W. 975; Gunther Bros. Co. v. Aylor, 92 Mo. App. 161, loc. cit. 166; Bergman v. Service Caster & Trunk Co. (Mo. App.) 249 S. W. 973, loc. cit. 975, 976; Cunningham v. Elvins (Mo. App.) 194 S. W. 515.

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