Redlinger & Hanson Co., a Corp. v. Parker
| Decision Date | 30 June 1932 |
| Docket Number | 6027 |
| Citation | 243 N.W. 792,62 N.D. 483 |
| Court | North Dakota Supreme Court |
Rehearing August 20, 1932.
Appeal from the District Court of Ward County, Lowe, J.
Modified and affirmed.
Schneller & Schneller and Heder & Lauder, for appellant.
A motion to compel the election between the counts based on express contract and a quantum meruit will not be granted. 31 Cyc. 654 and notes; George v. Odenthal, 58 N.D. 209 225 N.W. 325; Pipan v. AEtna Ins. Co. 58 N.D. 435, 226 N.W 499.
An action based upon two counts, one for an express contract, and the other on a quantum meruit basis is a good complaint and the plaintiff will not be required to elect upon which of the counts he is to stand before evidence on both counts is adduced. Willard v. Carrigan, 68 P. 538; Wilson v. Smith, 61 Cal. 209; Utter v. Burke, 120 Ill.App. 120; MacLaughlin v. Engelhardt, 62 N.Y.S. 428.
It is evident that the damages recoverable are nearly always involved in some uncertainty and contingency, and, therefore, it is a rule that reasonable certainty only is required. 8 R.C.L. 441.
But when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing on account of such uncertainty, any damages whatever for the breach. Wakeman v. Wheeler Wilson Mfg. Co. 101 N.Y. 205; National Bank v. Pittman (Tex.) 36 A.L.R. 1405; Blagen v. Thompson, 23 Or. 239, 18 L.R.A. 315, 31 P. 647; Lanahan v. Heaver, 79 Md. 413, 29 A. 1036; Jones v. George, 61 Tex. 347, 48 Am. Rep. 280; Welsh v. Morris, 81 Tex. 159, 26 Am. St. Rep. 801, 16 S.W. 744.
Where liquidated damages are to be sustained after a given day the contractor is entitled to know with precision what is a reasonable time and not leave it to the jury to determine. Willis v. Webster, 37 N.Y.S. 354; Mosler Safe Co. v. Maiden Lane S.D. Co. 199 N.Y. 479, 37 L.R.A.(N.S.) 363, 93 N.E. 81; Murphy v. Kassis, 59 N.D. 35, 228 N.W. 449; Caldwell v. Schmulbach, 175 F. 429; King Iron Bridge Mfg. Co. v. St. Louis, 10 L.R.A. 826.
Written contracts may be altered by subsequent parole agreement in relation to the time of performance. Chambers v. Board of Education, 60 Mo. 370.
If there is no testimony in the case tending to prove the facts assumed in the hypothetical question, such question is improper. Jones, Ev. 3d ed. 559; Kenney v. Brotherhood American Yeoman, 15 N.D. 21, 106 N.W. 44; Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Hunder v. Rindlaub, 61 N.D. 389, 237 N.W. 915.
George A. McGee, Harry E. Dickinson and Robert H. Bosard, for respondent.
Until the pleadings and proof show a rescission or abandonment, the rights of the respective parties depend solely on the contract. Evensta v. St. Olaf College, 173 Minn. 360, 217 N.W. 348; 9 C.J. 718.
One having the choice of two or more inconsistent remedies for his relief is bound by his selection of the remedy he will pursue and he cannot thereafter avail himself of the other remedies. 3 Elliott, Contr. 288; Reiffschneider v. Beck, 148 Mo.App. 725, 129 S.W. 232; Myheart v. Pennington, 20 Mont. 158, 50 P. 413; Manning v. School Dist. 124 Wis. 84, 102 N.W. 356.
When there is an express contract for a stipulated amount, and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit. 4 Elliott, Contr. § 3698; Carlson v. Sheehan, 157 Cal. 692, 109 P. 29; AEtna Indem. Co. v. George A. Fuller Co. 111 Md. 321, 73 A. 738, 74 A. 369.
A contract is not abandoned and a new contract substituted in its place, merely during the work it is mutually agreed that the plans and specifications shall be changed, and certain parts of the contract waived. Gray v. Jones (Or.) 813.
The granting or denying of a motion to require plaintiff to elect between express contract and the quantum meruit rests in the sound discretion of the court. Wetmore & Co. v. Thurman (Minn.) 141 N.W. 481.
No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. Hagan v. Knudson, 43 N.D. 72, 173 N.W. 794.
For the nonperformance of the building contract the damages must be proximate and reasonable. Hagan v. Knudson, 43 N.D. 72, 173 N.W. 794; Turner v. Affeldt, 34 N.D. 239, 158 N.W. 263; Sedgwick, Damages, 9th ed. § 641; Swanson v. Andrus, 83 Minn. 505, 86 N.W. 465.
Generally the measure of damages, upon the refusal of an employer to permit his employee to proceed under a contract for specific work at an agreed price, is the difference, if any, in favor of the latter, between the stipulated price and the cost of completing the work as per contract. Nilson v. Morse, 52 Wis. 240, 9 N.W. 1; Watson v. Gray's Harbor Brick Co. (Wash.) 28 P. 527; Hickok v. W.E. Adams Co. (S.D.) 99 N.W. 77.
The plaintiff who has but one cause of action will be compelled, either by a motion before the trial or by application and direction at trial, to select one of the counts and abandon the others, when he attempts to spread it upon the record in different shapes and modes as if he possessed more than one cause of action. Pom. Code Rem. 5th ed. § 467; Hause v. Hause, 29 Minn. 252, 13 N.W. 43; Matson v. Dane County, 172 Wis. 522, 179 N.W. 774; Pollock v. Whipple, 45 Neb. 844, 64 N.W. 210; Murphy v. Russell, 8 Idaho 133, 67 P. 421.
Under contract made with defendant to build the Leland Parker addition to his hotel in Minot and to remodel and repair the older portion the plaintiff began work in the forepart of 1929. The work was to be done under the supervision of the architect employed by defendant.
The contract between the parties specifically provides that the "General conditions of the contract, together with this agreement, Specifications and Drawings, form the Contract" between the parties, and these specifications and drawings are entitled "Leland Parker Hotel Addition, Minot, North Dakota, Sheets one to fifteen of Specifications entitled General Contract Leland Parker Hotel Addition, Minot, N. Dak. including General Conditions, pages one to eleven, Bidding Blanks, Instructions to Contractor, and Sections one to fourteen and addenda dated May 9th, 1929."
These papers and sheets contain the provisions that "the owner without invalidating the contract may make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly." They further provide that such work shall be executed under the contract as if these changes were included in the original contract "except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change." It is further provided that the "value of any such changes shall be determined by cost plus ten per cent" and it was made the duty of the plaintiff to keep and present the correct amount of the net cost in such form as the architect may direct. Plaintiff was to furnish the labor and material for the building.
During the process of building the defendant made several changes and alterations in the plans, and plaintiff says these changes not only increased the cost of material but also delayed the plaintiff in its work and caused it heavy damage. It is evident however, that unless the changes increased the cost plaintiff is not entitled to extra pay, and further that if the changes reduced the cost it was possible the plaintiff would be paid less than the contract price.
The complaint is two fold. It sets forth the terms of the contract in general and then alleges changes and alterations increasing the cost in the sum of $ 13,865.59 and damages caused by unnecessary delays amounting to $ 15,566.79. The original contract price was $ 76,764 and plaintiff admits it received from the defendant, on or before December 21, 1929, the sum of $ 73,308.75. Thus the plaintiff asks judgment for the remainder of the contract price and the further sum of $ 29,432.38 for increased costs and damages, or $ 32,887.63 in all. The complaint contains "a second cause of action" in which the claim of the plaintiff is alleged under an agreement to furnish labor and material and perform services for the defendant, and that the same were reasonably worth $ 106,196.38 of which no part has been paid except the sum of $ 73,308.75. The amount of judgment demanded therein is $ 32,887.63 with costs.
The answer sets forth the contract in full and the extras and deductions to be allowed, and then in counterclaim alleges damages to the defendant through delays occasioned by the plaintiff and through faulty work in construction. The defendant alleges the plaintiff is entitled to judgment in the sum of $ 4,922.44; but asks a deduction in the sum of $ 1,550 because of his counter-claim.
During the trial the court required the plaintiff to elect whether it would stand on the contract or demand quantum meruit relief, and permitted the defendant to amend his answer in order to set up his counter-claim. This action of the court is specified as error.
In submitting the case to the jury the court submitted thirty-six questions on behalf of the plaintiff. These asked the jury to find "What if anything is due the plaintiff?" followed by a statement of some proposition in dispute, such as "For addition to fire escape," "For any delay caused by plumber," "For delay, if any, in approving steel details" and similar matters. The court then requested the jury to return "a verdict for the plaintiff without deducting anything which the defendant may prove in his case."
The court further submitted to the jury on behalf of the defendant...
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