Shallis v. Fiorito

• Decision Date: 22 October 1924
• Citation: 240 P. 932,41 Idaho 653
• Parties: IRA H. SHALLIS, Respondent, v. NICK FIORITO, JOE FIORITO and G. FIORITO, a Partnership Doing Business Under the Firm Name and Style of FIORITO BROTHERS, Appellants
• Court: Idaho Supreme Court

240 P. 932

41 Idaho 653

IRA H. SHALLIS, Respondent, v. NICK FIORITO, JOE FIORITO and G. FIORITO, a Partnership Doing Business Under the Firm Name and Style of FIORITO BROTHERS, Appellants

Supreme Court of Idaho

October 22, 1924

CONTRACTS-PARTIAL PERFORMANCE-RECOVERY QUANTUM MERUIT-INSTRUCTIONS CONTRARY TO EVIDENCE-REVERSIBLE ERROR.

1. Partial performance of a contract entitles one to recover compensation for the work done thereunder, according to the contract price, less damages occasioned by reason of the failure to complete the contract.

2. Where an action is brought by the assignee to recover on quantum meruit for an alleged balance due contractors for work done on an abandoned contract which involved an accounting and defendants claim damage for its breach, and a general verdict for the balance is returned for the plaintiff, and the court has erroneously directed the jury to disallow a credit which the uncontradicted evidence shows the defendants were entitled to receive, a new trial will be awarded.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action on contract. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Cause reversed, with directions and appellants recovered costs.

W. B McFarland, for Appellants.

"For plaintiff's failure to finish its contract defendant can offset the amount he paid another to complete it, this being a reasonable amount, though this price was agreed on only after such person threatened to abandon his first contract as a losing proposition." (Smith Sand & Gravel Co. v Corbin, 102 Wash. 306, 173 P. 16; 9 C. J. 812, 815.)

Cameron McEachern and Robt. H. Elder, for Respondent.

"Though one's failure to fully perform the contract for his services is inexcusable, he may recover the reasonable value of services rendered, less any damage to the employer on account of the breach." (Stolle v. Stuart, 21 S.D. 643, 114 N.W. 1007; Huber v. Blackwell Lumber Co., 27 Idaho 373, 148 P. 903; Saunders v Short, 86 F. 225, 30 C. C. A. 462; McDonough v Evans Marble Co., 112 F. 634, 50 C. C. A. 403; Goodwin v. Merrill, 13 Wis. 658; Gomer v. McPhee, 2 Colo. App. 287, 31 P. 119; Gill v. Johnstown Lumber Co., 151 Pa. 534, 25 A. 120; Williston on Contracts, sec. 1363.)

WILLIAM A. LEE, J. McCarthy, C. J., and McNaughton, District Judge, concur.

OPINION

WILLIAM A. LEE, J.

This action is for a sum alleged to be due upon a contract between Lee & Paus, copartners, and Fiorito Brothers, also copartners, who had taken a contract to construct a part of a highway in Idaho between Coeur D'Alene and the Washington state line and had employed Lee & Paus to haul the sand and gravel required for this work at an agreed price of sixty cents per cubic yard for deliveries from what was known as Kennedy's pit, and if sand and gravel was obtained from a different place appellants agreed to pay a flat price of thirty-five cents per cubic yard based upon a two-mile haul. The contract required Lee & Paus to give a surety bond in the sum of $ 10,000 for the performance of their part of the agreement, and they assigned to respondent all sums due or to become due them under the contract, and their assignee brings this action to recover $ 3,094.80 alleged to be due for the delivery of 5,158 yards of sand and gravel on the basis of sixty cents per yard. Appellants answered and denied that there was anything due respondent and alleged that Lee & Paus, his assignors, had defaulted in the performance of their contract and abandoned the same; that by reason thereof appellants were compelled to procure other persons to complete the contract, and in so doing were required to pay a greater amount than they would have been required to pay Lee & Paus had they delivered the yardage necessary to complete the pavement, which their contract required them to do. The cause was tried to the court with a jury, which returned a verdict for respondent in the sum of $ 3,094.20. From the judgment on the verdict this appeal is taken.

We think a proper construction of the contract required Lee & Paus to haul the entire amount of sand and gravel required to complete the work undertaken by appellants.

The undisputed evidence shows that for the completion of the work undertaken by appellants in constructing this highway there was hauled 34,741 cubic yards of sand and gravel. Of this Lee & Paus delivered or caused to be delivered the first 5,157 yards before they abandoned the work, and there-after appellants contracted with the Cascade Investment Company to haul the remaining amount of sand and gravel required, which was 29,584 yards, and were required to pay, or did pay, this latter company on a basis of ninety cents per cubic yard. Respondent contends that this price was in excess of the reasonable value of the work, but this question was submitted to the jury under proper instructions.

The court in effect instructed the jury that defendants were entitled to offset against any amount that might be due Lee &amp Paus for their work in hauling sand and gravel any amount paid by defendants for labor or material bills incurred by Lee & Paus and any sum paid for hauling sand and gravel in the construction of said highway in excess of the amount they were to receive for said...