Schwalbe v. Postle

Decision Date02 April 1923
Docket Number10295.
Citation214 P. 388,73 Colo. 181
PartiesSCHWALBE v. POSTLE et al.
CourtColorado Supreme Court

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by David E. Postle and another, doing business under the name and style of Postle & Fischer, against Barbara E. Schwalbe. Judgment for plaintiffs, and defendant brings error.

Reversed with directions.

Charles H. Small and W. B. Morgan, both of Denver for plaintiff in error.

Frederick Sass, of Denver, for defendants in error.

DENISON J.

Postle & Fischer, plaintiffs below, had a verdict and judgment against Barbara E. Schwalbe for $4,641, and she brings error. She claims that the complaint states no cause of action. Omitting much surplusage and matters of mere evidence, it is in substance as follows:

'That plaintiffs are architects; that June 2, 1914, in Chicago, defendant employed them to prepare plans and specifications for a hotel in Oak Park, and to supervise the construction of it; that pursuant to said employment and at the special instance and request of defendant they prepared plans and specifications which she approved; that the total cost of the building was $154,700; that defendant refused to go on with it; that the reasonable value of said services in preparing plans, specifications, and of supervision was 5 per cent. of said cost; that they allowed defendant on said value $3,094, and claimed but $4,641, which had not been paid.
'Prayer for $4,641.'

There was a motion to make this complaint more definite and certain, which was properly denied. A general demurrer was overruled. It should have been sustained. The complaint stated no cause of action. If it be regarded as a complaint on an express contract, it states no promise or agreement; nor does it expressly state a consideration. If it be regarded as quantum meruit or indebitatus assumpsit for the value of the services performed, it states no value of the services performed, but only of all the services to be performed.

After the evidence was in, the court allowed the plaintiff to amend by stating that the defendant agreed to pay 5 per cent. of said cost for the plans, specifications, and supervision, and instructed the jury that, if they found for the plaintiffs the measure of damages was said 5 per cent., in no event to exceed $4,641. This was erroneous. The measure of damages was such loss as the plaintiffs actually suffered (17 C.J. 855); that is, the amount which they have 'been induced to expend on the faith of the contract, including a fair allowance for' their 'own time and services,' together with anticipated profits, subject, of course, 'to the rules of law as to the character of profits which may be thus claimed.' (United States v. Behan, 110 U.S. 338, 345, 4 S.Ct. 81,...

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3 cases
  • Baer Bros. Land & Cattle Co. v. Palmer
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 13, 1946
    ...& Surety Co. v. North Sterling Irr. Dist., 75 Colo. 185, 225 P. 261; Goldhammer v. Dyer, 7 Colo.App. 29, 42 P. 177; Schwalbe v. Postle, 73 Colo. 181, 214 P. 388. 5 Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 103 P.2d 918, 922; J. B. Wallis & Co. v. Wallace, Tex.Civ.App., 92 S.W. 43; Har......
  • Pallardy v. Link's Landing, Inc.
    • United States
    • Missouri Court of Appeals
    • April 22, 1976
    ...performance of their contract. Sides v. Contemporary Homes, 311 S.W.2d 117, 120--121(5--7) (8) (Mo.App.1958); Schwalbe v. Postle, 73 Colo. 181, 214 P. 388, 389(2) (1923); Johnson & Burns, Inc. v. Hayden, 98 Conn. 185, 119 A. 50, 52(5) (1922); Gould v. McCormick, 75 Wash. 61, 134 P. 676, 679......
  • Dunifer v. Pascoe
    • United States
    • Colorado Supreme Court
    • April 2, 1923

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