Paterson v. Condos

• Decision Date: 02 January 1934
• Docket Number: 3014.
• Citation: 28 P.2d 499,55 Nev. 134
• Parties: PATERSON v. CONDOS (OTIS ELEVATOR Co. et al., Interveners). [a1]
• Court: Nevada Supreme Court

28 P.2d 499

55 Nev. 134

PATERSON v. CONDOS (OTIS ELEVATOR Co. et al., Interveners). ^[a1]

No. 3014.

Supreme Court of Nevada

January 2, 1934

Appeal from District Court, Washoe County; L. O. Hawkins, Judge.

Action by James G. Paterson against Paul Condos, in which the Otis Elevator Company and others intervened. Judgment for plaintiff, and named defendant appeals.

Affirmed.

W. M Kearney, of Reno, for appellant Condos.

Green & Lunsford and Edward C. Short, all of Reno, for respondent Paterson.

Nash P Morgan, of Reno, for intervener and respondent Hooper.

Ayres Gardiner & Pike, of Reno, for intervener and respondent J. R Bradley Co.

COLEMAN Justice.

This is an action upon the quantum meruit to foreclose a mechanic's lien, in which materialmen and subcontractors joined. The defendant filed an answer in which he denied certain allegations of the complaint and pleaded affirmatively that an express contract was entered into to erect the building in question for the sum of $38,800, pursuant to certain plans and specifications. In his reply the plaintiff denied this affirmative allegation. The court entered its formal findings, wherein it found that the parties originally entered into the express contract pleaded in the answer, but that thereafter "*** fifty seven changes were made in the building as contemplated by the original plans and specifications, and the building was thereafter constructed practically without regard to either set of plans and specifications, and that the original offer and bid of plaintiff to construct said building was abandoned with the consent, acquiescence and direction of the defendant."

The first point we will consider is the contention that, the court having found that an express contract was entered into between the plaintiff and the defendant, as alleged in the answer, the plaintiff cannot recover because his whole case is bottomed upon an action on the quantum meruit. In support of this contention counsel for appellant cites Colyer v. Lahontan M. Co., 54 Nev. 353, 17 P.2d 697; Christensen v. Duborg, 38 Nev. 404, 150 P. 306, and other cases of similar import. Those cases correctly state the law applicable to the facts involved therein, as a casual reading will show. The situation presented in this case is very dissimilar to that presented in those cases; hence they have no application.

We think the rule applicable to the facts of this case is correctly stated in Hood v. Smiley, 5 Wyo. 70, 36 P. 856, 857, where it is said: "It is the common experience of men that changes and alterations in the original plans and specifications of buildings are the rule, and not the exception, and the legal rule seems to be well established, as stated by counsel for plaintiff in error, 'that where additions are ordered to be made, and are made, to a building which a workman has contracted to furnish for a certain sum, the original contract is held to exist as far as it can be traced to have been followed, and the excess must be paid for according to its reasonable value;' and it is only where the alterations and changes are so great that it is impossible to follow the original contract that it will be deemed to have been wholly abandoned, so that the contractor can recover upon a quantum meruit."

The Supreme Court of Utah, in a similar case, said: "The contention therefore now made by appellant that, in an action based upon an express contract, there can be no recovery as upon quantum meruit, is not applicable to the record in this case. Nor is the claim tenable that, where there is an express contract entered into between parties for the construction of a building, an action as upon quantum meruit to recover for labor performed and material furnished in erecting the building cannot be maintained. It is quite true that a party entering into a contract of this character may not abandon the contract and recover more than the contract price upon a quantum meruit; but there may be cases where the stipulations of the contract have been departed from either by the express consent of the parties or by implication through their conduct in making changes in materials, workmanship, or structure by reason of which it may become a matter of doubt whether the contract, as a whole, has been abandoned or not. In such cases the contractor may, in the first instance, sue as upon a quantum meruit, and leave it to the defendant to set up and insist upon the contract for the purpose of limiting the recovery to the price stipulated therein. The defendant may in such a case likewise insist that the stipulations of the contract remain in full force and have not been performed, and may demand damages for a noncompliance with the terms of the contract. The contractor may, however, in such cases, also base his action upon both the contract and upon a quantum meruit by setting up the former in one count and the latter in another in his complaint. In all such cases a recovery by either party will be allowed in accordance with the facts developed at the trial and the law applicable thereto. Again, a contractor, in case the contract is fully performed, and nothing remains except to obtain payment, may sue to recover the amount unpaid without specially declaring upon the contract. These propositions have been discussed and passed upon many times by the courts, and are illustrated and applied in the following cases: Todd v. Huntington, 13 Or. 9, 4 P. 295; Schwartzel v. Karnes, 2 Kan. App. 782, 44 P. 41; Board of Com'rs v. Gibson, 158 Ind. 471, 63 N.E. 982; Moore v. Gaus & Sons' Mfg. Co., 113 Mo. 98, 20 S.W. 975; Burgess v. Helm, 24 Nev. 242, 51 P. 1025; Wilson v. Smith, 61 Cal. 209." Foulger v. McGrath et al., 34 Utah, 86, 95 P. 1004, 1006.

In Reynolds et al. v. Jourdan, 6 Cal. 108, the court said: "Where the entire performance of a special contract has been prevented by one of the parties, or where its terms have been afterwards varied by the agreement of both parties, the action for the amount due for work and labor should be in the form of indebitatis assumpsit, and not upon the contract."

"A contract will be treated as abandoned where the acts of one party inconsistent with its existence are acquiesced in by the other." 13 C.J. 601.

See, also, Adams v. Pugh, 7 Cal. 150; De Boom v. Priestly, 1 Cal. 206; O'Connor v. Bingley, 26 Cal. 20; Adams v. Burbank, 103 Cal. 646, 37 P. 640; 40 Cyc. 2825, as to modification of contract; 13 C.J. 589.

It follows from what we have said that as a matter of law the court committed no error in refusing to accept the contention of appellant, in view of the findings.

As to the contention that specifications contained certain provisions which preclude the plaintiff's recovery, we need only say that by the abandonment of the original contract and the erection of a building costing many thousand dollars more than contemplated by the original contract the defendant waived the provisions relied upon.

Having reached the conclusion indicated, but one question remains to be considered so far as the claim of the plaintiff is concerned, and that is as to the sufficiency of the evidence to justify the conclusion of the court. The record in this case consists of four large volumes, and to even undertake to analyze the evidence would result in an unduly lengthy opinion. We have considered the evidence, and we are satisfied that the conclusion of the trial court is amply justified.

It is next contended that the court erred in entering judgment in favor of E. U. Hooper for services rendered as an architect in drawing plans for the building and in supervising its construction. Our lien statute (section 3735, N. C. L.) provides that: "Every person performing labor upon, or furnishing material of the value of five (5) dollars or more to be used in the...