State ex rel. Gary v. Fireman's Fund Indem. Co.
Decision Date | 13 September 1960 |
Docket Number | No. 6600,6600 |
Citation | 67 N.M. 360,1960 NMSC 100,355 P.2d 291,84 A.L.R.2d 1072 |
Parties | , 84 A.L.R.2d 1072 STATE of New Mexico ex rel. V. S. GARY, d/b/a Gary Electric, Plaintiff-Appellee, v. FIREMAN'S FUND INDEMNITY COMPANY, Defendant-Appellant. |
Court | New Mexico Supreme Court |
McAtee, Toulouse & Marchiondo, Albuquerque, for appellant.
C. N. Morris, Eunice, for appellee.
This is an action to recover for materials and services furnished in connection with repairing and replacing certain electrical work in a school building at Eunice, New Mexico, constructed by Denton & Griggs, Contractors. Defendant executed its performance bond as surety for the contractor on the job. The contractor has become bankrupt.
After the job had been completed and accepted on or about April 20, 1956, the School District went into possession and occupied the building during the last month of school in the 1956 term and thereafter.
About December 1, 1956, there was some difficulty with certain electrical installations in the building and pursuant to instructions from representatives of defendant, plaintiff was employed and directed by one Robert E. Merrill, architect on the job, to have the trouble corrected and the bill sent to defendant, in care of Mr. Lyons. The bill which was in the amount of $560.55 was not paid, and plaintiff sued and was awarded judgment therefor. This appeal followed.
Appellant argues that the findings of fact made by the court are not based upon substantial evidence. With this contention we cannot agree.
The court made the following material findings of fact:
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Each of the findings being supported by substantial evidence, they will not be disturbed on appeal. Flippo v. Martin, 52 N.M. 402, 200 P.2d 366.
It certainly follows without question that the findings quoted support a judgment in favor of plaintiff.
Specifically defendant complains that whereas suit was started in the name of the State on the relation of V. S. Gary, the court on its own motion permitted the State to be dropped as a party and the case to proceed in the name of V. S. Gary. In the first place it appears that the change occurred through adoption by the court of plaintiff's requested findings and conclusions. Accordingly, we are of the opinion the change was on motion of plaintiff, if that is material, which we doubt. The complaint was based upon the employment by Mr. Merrill on behalf of defendants to do the repair work and the proof followed this line. Certainly, defendant could not have been surprised. That the court did not err is clear to our minds. See Sec. 21-1-1(21); American Fidelity & Casualty Co. v. All American Bus Lines, Inc., 10 Cir., 190 F.2d 234; compare State ex rel. Skinner v. District Court, 60 N.M. 255, 291 P.2d 301.
Defendant also argues that whereas suit was on an alleged contract, recovery was based on quantum meruit. The argument is predicated on the fact that no price for plaintiff's services had been agreed to. Defendant does not question the sufficiency of proof of the reasonableness of the charges but contends the recovery is thus one in quantum meruit and not contract. In this defendant is patently mistaken. We quote Comment (a) to Sec. 5 of Restatement of the Law of Contracts, and Illustration 1 thereunder which is our identical case:
'Illustrations:
Because of the problems present in determining the proper form in which to sue--contract or quasi-contract--and the hazards incident thereto under the...
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