Schroeder v. Schaefer
| Decision Date | 28 December 1970 |
| Parties | W. F. SCHROEDER and D. S. Denning, Jr., S. Ben Dunlap, Herbert W. Rettig, and Richard Rosenberry, Respondents, v. Elizabeth Rose SCHAEFER and Dennis Schaefer, Appellants. . Upon Respondents' Petition for Rehearing Filed |
| Court | Oregon Supreme Court |
W. S. Schroeder, D. S. Denning, Jr., Vale, S. Ben Dunlap, Herbert W. Rettig, and Richard Rosenberry, Caldwell, Idaho, for the petition.
Harold A. Fabre, and Fabre & Ehlers, Pendleton, contra.
Plaintiffs filed a petition for rehearing Among the points raised was a contention that, after refusing to enforce the written contract, this court erred in failing to determine the reasonable value of plaintiffs' services or, in the alternative, in not remanding the case to the trial court for that purpose. As a consequence of this contention, the court requested and received a response from the defendants to which plaintiffs replied.
The immediate problem is whether the pleadings and the proof are sufficient to put Quantum meruit in issue. This court has many times held that an action on a specific contract is insufficient to support a determination of reasonable value. Bahler v. Fletcher, 91 Or.Adv.Sh. 21, 474 P.2d 329, 331 (1970); Flaherty v. Bookhultz et al., 207 Or. 462, 483, 291 P.2d 221, 297 P.2d 856 (1956); Williams v. Ledbetter, 132 Or. 145, 150, 285 P. 214 (1930).
However, we have come to the conclusion that the rule of Bahler, Flaherty, and Williams should be qualified. The purpose of pleadings is to give notice of the issues to be litigated so that appropriate defenses can be prepared. Therefore, in a situation in which no surprise or prejudice has been suffered by the opposing party, the unqualified and strict application of the rule in question would seem to be inappropriate. This view has been adopted by the courts of both Idaho and North Carolina. H. J. McNeel, Inc. v. Canyon County, 76 Idaho 74, 277 P.2d 554 (1954) and Martin Flying Service v. Martin, 233 N.C. 17, 62 S.E.2d 528, 530 (1950). In McNeel, the Idaho court said as follows:
'* * * Respondent contends that plaintiff having pleaded and prosecuted its action upon an express contract, cannot now on appeal urge a right to recover on implied contract.
'* * *.
'* * * Where a plaintiff pleads an express contract, but by proof establishes facts sufficient to support only an implied contract, he may recover upon the implied contract, in the absence of surprise or prejudice to the defense * * *.' 277 P.2d 554 at 556.
ORS 16.660, which is made applicable to both suits 1 and actions, militates toward the same rule in Oregon. The statute provides:
'The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.'
The defendants were not taken by surprise. In discussing the admissibility of evidence, defendants' attorney made the following statement to the trial court:
Defendants' attorney, in cross-examining one of the plaintiffs, also stated as follows:
'Q You understand that his Honor may reach a point where he is going to put a value on your services on a quantum merit (sic) basis?
'A Yes.
'Q And on that basis what do you think your time is worth?
'A Quantum merit (sic) basis?
'Q Yes.
'A We would try to get $30 per hour.'
In addition, defendants used about six pages in their brief contending that the proof was insufficient to sustain a cause of action in Quantum meruit for more than $7,500. Both parties put on expert testimony in addition to that quoted relative to the reasonable value of the services. The extent of services performed and the time involved were delved into minutely.
Defendants contend in their brief that the circumstances surrounding the execution of the express written contract should prevent plaintiffs from receiving any fee at all. They rely on the following language from 7 Am.Jur.2d Attorneys at Law § 219:
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