Wuchter v. Fitzgerald

• Decision Date: 20 March 1917
• Citation: Wuchter v. Fitzgerald, 83 Or. 672, 163 P. 819 (Or. 1917)
• Parties: WUCHTER v. FITZGERALD ET AL.
• Court: Oregon Supreme Court

163 P. 819

83 Or. 672

WUCHTER v. FITZGERALD ET AL.

Supreme Court of Oregon

March 20, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by John Wuchter against Charles Fitzgerald and another. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

This is an action to recover for the value of services rendered. The substance of the complaint is that on the 1st day of June 1913, plaintiff and defendants entered into a contract whereby plaintiff agreed to clear a certain tract of land with the assistance of the defendants and to have the work completed within about 8 months from that time for the sum of $400; that it was agreed that defendants were to furnish a team of horses for the purpose of dragging the logs and stumps together for effective burning, and that plaintiff was to have half of the amount due for the clearing of each acre as it should be ready for the plow; that defendants failed and refused to furnish the team of horses as stipulated and refused to pay plaintiff more than $135 on the agreed price that plaintiff was thereby hindered, delayed, and prevented from completing the work and removing the roots from the land after it was plowed. Then follows this allegation:

"That since plaintiff ceased to work upon said lands, the defendants have made use of and been benefited by the work and labor rendered by the plaintiff and by the material furnished by him, and the defendants have plowed and cultivated the said land, and are now growing crops on the same, and have been benefited in the sum of $438 as a result of the work and labor performed and the material furnished by the plaintiff as a partial compliance with the said contract and that plaintiff could have and would have fully complied with the said contract, had defendants not failed and refused to keep and perform their duty and obligations as above alleged, and that defendants have paid plaintiff the sum of $135, and no more, and that by reason of the above allegations defendants are indebted to plaintiff in the sum of $353."

The complaint concludes with the prayer for judgment in the sum of $353.

The answer admits entering into a contract, but alleges that it was in writing, and sets it out in full as follows:

"Cleone Oregon, June 1st, 1913.

"This is to certify that we, the Fitzgerald Bros. (Charles and Robert), party of the first part agree to pay to Mr. John Wuchter, party of the second part ($400.00) four hundred dollars for the grubbing and clearing of a certain strip of land near our east line on Blue Lake ridge, consisting of (4 3/4) four and three-quarters acres, which is to be completed in about (8) eight months from date. Party of the first part is to pay for same one-half of the amount due per acre at the completion of each acre after the first acre is completed; balance due, or one-half of same, at finish of job when ground is plowed; also party of the second part agrees to follow plow, when plowed, to clear the ground of all roots.

"Signed by first part: Charles Fitzgerald.

"Robert Fitzgerald.

"Party of second part: John Wuchter."

This is followed by a denial of the other allegations of the complaint. There was no reply. A trial being had, a verdlet and judgment were entered for the plaintiff in the sum of $305, from which defendants appeal.

W. L. Cooper, of Portland, for appellants. Wm. M. La Force, of Portland, for respondent.

BENSON, J. (after stating the facts as above).

During the trial the court permitted the plaintiff, over the objection of defendants, to amend his complaint by inserting this paragraph:

"That defendants breached and broke said contract, in that they failed and refused to plow said land as it was cleared and grubbed and made ready for plowing, as in said contract they had agreed to do, and this prevented plaintiff from

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