Waite v. C.E. Shoemaker & Co.

• Decision Date: 13 February 1915
• Docket Number: 3463.
• Parties: WAITE v. C. E. SHOEMAKER & CO.
• Court: Montana Supreme Court

146 P. 736

50 Mont. 264

WAITE v. C. E. SHOEMAKER & CO.

No. 3463.

Supreme Court of Montana

February 13, 1915

Appeal from District Court, Fergus County; C. C. Hurley, Presiding Judge.

Action by Harry C. Waite against C. E. Shoemaker & Co. Judgment for plaintiff, and defendant appeals from denial of its motion for a new trial. Reversed and remanded.

Belden & De Kalb, of Lewistown, for appellant.

Charles J. Marshall and Wm. M. Blackford, both of Lewistown, for respondent.

BRANTLY C.J.

Action to recover of the defendant corporation the value of services alleged to have been rendered to it by the plaintiff. The cause was tried by Hon. E. K. Cheadle, sitting with a jury which returned special findings and a general verdict for plaintiff for $1,774.25. Judgment was entered for this amount and costs. Judge Cheadle having thereafter, and prior to the submission of defendant's motion for a new trial, retired from office, and Hon. Roy E. Ayers, his successor, being disqualified by reason of interest, the motion was heard and determined adversely to defendant by Hon. C. C. Hurley, judge of the Seventh district. The appeal is from the order denying the motion.

On August 18, 1911, the plaintiff entered into a written contract with the defendant, of which, omitting formal recitals, the following is a copy:

"It is hereby agreed that the party of the first part (plaintiff) is to plow, work down, and sow to winter wheat all that part of the following described land, which is now under cultivation: [Here is described the land belonging to the defendant, situate in Fergus county and consisting of one entire section.] This work to be commenced by the party of the first part within three days after notice by the party of the second part, and the entire job of plowing working down, and seeding to be completed by September 15, 1911. It is agreed that the party of the first part is to so plow and work down the land above mentioned as to prepare a good seed bed, the plowing to be from four to six inches deep, with an average depth of at least four and one-half inches and a minimum depth of four inches, all the work to be done to the satisfaction of the party of the second part. It is agreed that all machinery and implements necessary to accomplish the work contemplated by this contract are to be furnished by the party of the first part at his own expense, but that the seed wheat is to be furnished on the ground by the party of the second part. It is agreed that the party of the first part is to receive as compensation for the work above described the sum of three and 50/100 dollars ($3.50) per acre."

It is alleged in the complaint that all of the land described which was under cultivation at the time the contract was entered into consisted of 595 acres; that plaintiff, after notice by defendant, began the work, and diligently prosecuted it to completion, duly performing all the conditions of the contract; that he plowed, worked down, and sowed to winter wheat 595 acres, completing the work on October 15, 1911; and that immediately thereupon there became due to him from the defendant, reckoning at the price of $3.50 per acre, the sum of $2,082.50, no part of which has been paid, though frequent demand for payment has been made. In a second count plaintiff seeks recovery upon a quantum meruit, alleging the reasonable value of his services to be $2,082.50.

The answer, admitting the execution of the contract as alleged, denies that the plaintiff plowed any greater number of acres than 580; denies that he began to plow within the time specified in the contract; denies that the contract was executed according to its terms. In a further separate defense, by way of counterclaim, alleging full performance on its part, defendant sets forth various particulars in which the plaintiff failed to fulfill the contract, viz.: To begin the work at the time specified in the contract; to complete it by the time specified; to plow the land to the depth required, or to so work it down as to prepare a good seed bed, or to accomplish the work to the satisfaction of the defendant. It is alleged that, because of the failure of plaintiff to comply with the contract in the particulars above mentioned, and before the plowing had been completed or any seeding done, the defendant notified plaintiff to cease work and to leave the premises. It is further alleged that, by reason of plaintiff's delinquencies above alleged, the defendant was damaged in the sum of $5,000. The answer to the quantum meruit count denies generally all the allegations therein, except that plaintiff made demand upon defendant for the payment of the sum claimed to be due. It further alleges a counterclaim for damages in the sum of $5,000 for failure of plaintiff to comply with the contract in the particulars enumerated in the counterclaim to the first count. Plaintiff's reply admits that he did not complete the work within the time specified in the contract, assigning as a reason therefor that the defendant withheld the premises so that he could not begin it earlier. He also admits that he did not plow all the land to the depth required, but alleges that he complied fully with the contract in this regard whenever it was not impossible to do so by reason of the rocky and stony character of the soil. He denies all the other allegations of both counterclaims. As a further general reply it is alleged, in substance, that at the time plaintiff entered into the contract with the defendant, he was wholly unacquainted with the character of the land of defendant, the subject of the contract; that defendant's agent represented to him that the land was stubble land which had previously all been plowed and cultivated; that it was not stony or rocky in character, but fine farming land, free from rocks and stone, and offering no obstacle to the accomplishment of the work which plaintiff undertook to do, whereas, in fact, large areas of it had never been plowed or cultivated, and was stony and rocky in character, by reason of which it was impossible for plaintiff to plow it to the required depth or to prepare it for seeding as in the contract provided, all of which made it impossible for him to comply with the terms of the contract in this behalf; that the defendant well knew that these representations were false, and were made for the purpose of inducing plaintiff to enter into the contract; and that plaintiff entered into it relying upon the representations so made to him, whereas, if the character and condition of the land had been disclosed to him, he would not have done so. It is alleged further that the defendant greatly delayed and hindered plaintiff in beginning and completing the work by failing to remove the crop then standing upon the land, and by leaving upon the land the straw from this crop, rendering it exceedingly difficult to plow the land at all; but that, notwithstanding these acts of the defendant and its false representations, plaintiff entered upon the land as soon as he could, and continued diligently in the prosecution of the work to its completion in the best manner possible under the circumstances.

The sufficiency of the evidence to justify a verdict for the plaintiff in any amount was challenged by a motion for nonsuit, and also on the motion for a new trial. It is contended that it did not present a case for the jury, because, the contract being admitted, and it appearing without controversy that the plaintiff had failed in substantial particulars to perform it to the satisfaction of defendant, he cannot recover either upon the contract or upon a quantum meruit. It is also contended that, if it be conceded that when a party has been induced to enter into a contract by means of fraudulent representations, and has undertaken to perform, and has performed, it to the best of his ability under the circumstances as they are found to exist, he may by his allegations and proof avoid the contract altogether and recover the value of the services actually rendered, the evidence was insufficient to justify recovery on this theory.

The foregoing synopsis of the pleadings discloses a complete departure in the reply from the issues tendered by the complaint. No effort was made by motion or otherwise prior to or during the trial to eliminate the confusion in the issues arising out of this departure. Manifestly, if the plaintiff was induced to enter into the engagement by fraud and misrepresentation by the defendant, there was no meeting of minds of the parties, with the result that there was no contract. Plaintiff could not declare upon the contract, and at the same time avoid it on the ground of fraud, and nevertheless recover upon proof of performance of it, either in whole or in part. His reply being inconsistent with the complaint, he must be held to have abandoned the cause of action upon the contract and have based his right to recover exclusively upon the theory that, having rendered to the defendant services of substantial value, the law cast upon it the obligation to pay for them. The reply, being merely responsive to matters alleged affirmatively in the answer cannot perform the office of amending the complaint, nor itself become the basis of recovery. Thornton v. Kaufman, 35 Mont. 181, 88 P. 796; Manuel v. Turner, 36 Mont. 512, 93 P. 808; 9 Cyc. 747. If the allegations of the reply were true, the allegations of the first count in the complaint were manifestly untrue, with the result that the question whether the plaintiff performed the contract according to its terms was not a triable issue. Nor was there presented a triable issue under the second count upon the question whether the contract had been substantially performed. Judging from the instructions submitted to the jury, the...