Caverly v. McOwen

123 Mass. 574, 1878 Mass. LEXIS 203

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1878
• Status: Published

Opinion

Morton, J.

The allegation in the defendant’s answer that “ if the plaintiff shall prove that he performed the services set out in his declaration and bill of particulars, or any part thereof, then the defendant will show that they were unskilfully and negligently performed,” is not a direct and positive allegation as required by the rules of pleading, and sets up no defence. Suit v. Woodhall, 116 Mass. 547. Jackman v. Doland, 116 Mass. 550.

But this is immaterial, because we are of opinion that it was competent for the defendant, under the general denial of “ each and every allegation and particular in the plaintiff’s declaration and bill of particulars contained,” to introduce evidence of the negligence and want of skill of the plaintiff.

Under the system of pleading established by the Sts. of 1851, c. 233, and 1852, c. 312, reenacted by the Gen. Sts. e. 129, the answer must deny in clear and precise terms every substantive fact intended to be denied, and must set forth in clear and precise terms every substantive fact intended to be relied upon in avoidance of the action. Gen. Sts. e. 129, §§ 17, 20.

But it has been held that a general denial of “ each and every allegation ” of the declaration puts in issue all the facts necessary to be proved by the plaintiff in order to make out a primé facie case. In other words, such general denial puts in issue every fact, the burden of proof of which rests on the plaintiff. Davis v. Travis, 98 Mass. 222, and cases cited.

In the case at bar, the plaintiff declares on an account annexed for services rendered and disbursements made by him as °an attorney at law. It is not contended that the services were rendered under a special contract or for a price agreed upon by the parties.

When one person performs labor for another, without any agreement as to price, the law implies a promise by the person at whose request it is performed to pay what it is reasonably worth. This may be sued for upon the common count for work lone, or on an account annexed, but such count is substantially the common law count ipon a quantum meruit, and involves all the allegations contained in that count. The common law count apon a quantum meruit alleges not only that the work was done at the request of the defendant, but also that in consideration thereof, the defendant promised the plaintiff to pay him therefor so much money as he reasonably deserved to have, which he alleges to be the sum of, &c. Oliver’s Free. 150. 1 Chit. PL (16th Am. ed.) 352.

The burden is therefore upon the plaintiff to prove, in order to make a primé facie case, that the work was done at the request of the defendant, and also what it is reasonably worth.

In this case the plaintiff, as he was obliged to do, introduced evidence to show the value of his services, and it was competent for the defendant upon this issue to introduce evidence that, by reason of the negligence or unskilfulness of the plaintiff, such services were of little or no value. This was not matter in avoidance of the plaintiff’s action, but met the plaintiff’s evidence upon an issue on which the burden was on him, and was admissible under the general denial, which included a denial of all the facts which the plaintiff was bound to prove. See Howard v. Hayward, 16 Gray, 354; Mulry v. Mohawk Ins. Co. 5 Gray, 541. The evidence of negligence or want of skill went directly to the question of the consideration of the alleged promise of the defendant which the plaintiff was required to prove.

The instructions to the jury were in substance that the plaintiff was bound to possess and exercise ordinary skill and diligence, and therefore that they might consider the negligence of the plaintiff or the want of ordinary skill and knowledge on his part in determining the value of his services; and that, if in consequence of his negligence or want of ordinary skill they were of no value, they might find for the defendant, and were correct. Holman v. King, 7 Met. 384. Varnum v. Martin, 15 Pick. 440.

The only other question is as to the competency of the record of the case of Custy v. Lowell, and of the St. of 1873, c. 261. The services for which the plaintiff sued were rendered in that case and the record was competent to show the character and nature of his services. For the same reason the St. of 1873 was competent. Both bear directly upon the question of the plaintiff’s want of skill or negligence in advising and prosecuting the suit, for his services in which the suit at bar is brought.

Exceptions overruled-