Evans, J.
The transaction under review was incidental to a paving project in course of construction in the city of Crestón in 1923. The defendant was the paving contractor, which was engaged in the performance of its contract with the city. The plaintiff may be designated as a grading subcontractor. Under the paving contract between the defendant and the city, certain grading was to be done by the city and certain other grading was to be done by the contractor. It was the undertaking of the city to bring its street to the grade of the surface of the proposed pavement. In the parlance of contractors, this is known as a "top grade.” It represents the elevation or level of the surface of the pavement when completed. All excess dirt above such elevation was to be removed by the city, preparatory to the execution of its contract by the paving contractor. There is another species of grade, known in the parlance of a contractor as a ‘ ‘ subgrade. ’ ’ This represents the elevation or level of the bottom or base of the pavement when constructed. The difference or space between the two grades represents the thickness of the pavement when constructed. It was the undertaking of the paving contractor to take the street when it was reduced by the city to the "top grade,” and to do the additional grading necessary to reduce it to the "subgrade.” The cubic yardage of the space between the "top grade” and the "subgrade” is equal to the cubic yardage of the pavement, which in this case was about eight inches thick. The plaintiff first contracted with the city to do its grading and to bring its streets to the "top grade” at 40 cents per cubic yard, with extra pay for overhaul in excess of 500 feet. Shortly after he had entered upon the performance of such contract, the defendant, through its president, Burrows.
engaged him to do the subgrading for it at the same time. A verbal agreement was entered into between them at that time. The vital issue in the case is the price fixed in such agreement. The plaintiff avers that the price agreed upon was 55 cents per superficial yard, — that is to say, per square yard of surface. The defendant contends that the price agreed upon was the same as that provided in the contract between plaintiff and the city, — 40 cents per cubic yard. The plaintiff proceeded with the execution of both contracts at the same time, bringing the street to the “subgrade,” instead of “top grade.” His work covered an area of about 6,800, square yards. The actual amount of dirt moved in the subgrading, according to the evidence, was 910 cubic yards. These figures present the measure of the dispute. The plaintiff filed his petition in two counts. Upon the first count, he pleaded the express contract, and claimed recovery .thereon at the agreed price. In the second count, he sued upon a
quantum meruit,
and claimed the same price as the reasonable value of the services. Later, he withdrew the second count, and tried and submitted his case upon the first count only. The plaintiff pleaded also that he failed to perform fully the contract set up by him, and pleaded justification of such failure in that the defendant had breached it and failed to perform its part. He averred that, pursuant to the contract, the defendant was to pay him the estimated value of the work done at the expiration of two weeks, and that the defendant wholly failed to perform such agreement. The plaintiff offered no evidence of reasonable value. The defendant did introduce evidence on that subject. This was received, however, only as bearing on the dispute between the parties as to what the contract price was. This evidence showed the reasonable value of moving dirt for the purpose of grading a street or highway as ranging from 26 cents to 40, and possibly 50, cents per cubic yard. The argument here has been devoted largely to the merits of the litigation and to the alleged extravagance and exaggeration of plaintiff’s claim. If cubic yardage was the unit upon which the price was predicated, then the plaintiff’s claim cannot exceed five or six hundred dollars; whereas, if the square yard was the unit, the chasm between the parties becomes very wide. On the basis of cubic yardage, the plaintiff is claiming at the rate of more than $4.00 per yard. This is perhaps a sufficient indication of the general character of the record. It will suffice, also, to an
understanding of the error at the trial which we are about to point out.
The case, as presented to us, is involved in some confusion by the construction which the plaintiff puts in his brief here, upon his pleading in the court below. This attitude may be indicated by the following short quotation from his brief:
“Under this proposition, appellant complains of the theory on which the court submitted the case to the jury, claiming that the suit is on the contract, therefore full performance must be shown, in order to recover. The case was tried on Count 1 of the petition.
That count is nothing less than a petition in quanhim meruit.”
(The italics are ours.)
In the foregoing statement, the appellee-plaintiff is gravely in error. If his contention at this point were correct, he would fail for want of any evidence in support of a
quantum meruit.
He introduced no testimony on the question of reasonable value. As already indicated by us, his “Count 1” was upon the contract. His count upon the
quantum meruit
was expressly withdrawn. The court properly submitted the case as upon an express contract. The failure of plaintiff to introduce evidence of reasonable value was consistent with his count upon the express contract. This same attitude appears to have been taken by plaintiff in the court below, and in dealing with it, the court became involved in error. Instruction 7 givexi by the court was as follows:
“The plaintiff admits that he quit said wox’k before it was completed, but claims that, under his contract with the defendant, the defendaxit was tp pay him every two weeks while said work was in progress, upon estimates to be made by the city engineer of Crestón, and that the defendant failed to have such estimates made, and failed to pay plaixxtiff any money thereon, and that, because of such failure on the part of defendant, the plaintiff was compelled to abandon such work before its completion. As to this you are instructed: That the burden is upon the plaintiff to prove by a preponderance of the evidence that the defendant agreed to have such estimates made every two weeks and to make payment thereon, and that the defexxdant failed to have any estimate made on said work or to pay plain
tiff therefor. If you so find, from the evidence, then plaintiff would be justified in abandoning said work, and would not be liable in damages to the defendant for any failure to complete said contract.
But unless you do find from a preponderance of the evidence that the defendant agreed to have such estimate made every two weeks and to make payment to plaintiff thereon as claimed by plaintiff, then plaintiff would be entitled only for the amount of work done by him at the price which you find, from the evidence the defendant had agreed to pay plaintiff for such work, less any damages the defendant may have
sustained,
by the failure of Ihe plaintiff to complete said work, if any, if you find that plaintiff abandoned said work, and was not justified in so abandoning it.”
Free access — add to your briefcase to read the full text and ask questions with AI
Evans, J.
The transaction under review was incidental to a paving project in course of construction in the city of Crestón in 1923. The defendant was the paving contractor, which was engaged in the performance of its contract with the city. The plaintiff may be designated as a grading subcontractor. Under the paving contract between the defendant and the city, certain grading was to be done by the city and certain other grading was to be done by the contractor. It was the undertaking of the city to bring its street to the grade of the surface of the proposed pavement. In the parlance of contractors, this is known as a "top grade.” It represents the elevation or level of the surface of the pavement when completed. All excess dirt above such elevation was to be removed by the city, preparatory to the execution of its contract by the paving contractor. There is another species of grade, known in the parlance of a contractor as a ‘ ‘ subgrade. ’ ’ This represents the elevation or level of the bottom or base of the pavement when constructed. The difference or space between the two grades represents the thickness of the pavement when constructed. It was the undertaking of the paving contractor to take the street when it was reduced by the city to the "top grade,” and to do the additional grading necessary to reduce it to the "subgrade.” The cubic yardage of the space between the "top grade” and the "subgrade” is equal to the cubic yardage of the pavement, which in this case was about eight inches thick. The plaintiff first contracted with the city to do its grading and to bring its streets to the "top grade” at 40 cents per cubic yard, with extra pay for overhaul in excess of 500 feet. Shortly after he had entered upon the performance of such contract, the defendant, through its president, Burrows.
engaged him to do the subgrading for it at the same time. A verbal agreement was entered into between them at that time. The vital issue in the case is the price fixed in such agreement. The plaintiff avers that the price agreed upon was 55 cents per superficial yard, — that is to say, per square yard of surface. The defendant contends that the price agreed upon was the same as that provided in the contract between plaintiff and the city, — 40 cents per cubic yard. The plaintiff proceeded with the execution of both contracts at the same time, bringing the street to the “subgrade,” instead of “top grade.” His work covered an area of about 6,800, square yards. The actual amount of dirt moved in the subgrading, according to the evidence, was 910 cubic yards. These figures present the measure of the dispute. The plaintiff filed his petition in two counts. Upon the first count, he pleaded the express contract, and claimed recovery .thereon at the agreed price. In the second count, he sued upon a
quantum meruit,
and claimed the same price as the reasonable value of the services. Later, he withdrew the second count, and tried and submitted his case upon the first count only. The plaintiff pleaded also that he failed to perform fully the contract set up by him, and pleaded justification of such failure in that the defendant had breached it and failed to perform its part. He averred that, pursuant to the contract, the defendant was to pay him the estimated value of the work done at the expiration of two weeks, and that the defendant wholly failed to perform such agreement. The plaintiff offered no evidence of reasonable value. The defendant did introduce evidence on that subject. This was received, however, only as bearing on the dispute between the parties as to what the contract price was. This evidence showed the reasonable value of moving dirt for the purpose of grading a street or highway as ranging from 26 cents to 40, and possibly 50, cents per cubic yard. The argument here has been devoted largely to the merits of the litigation and to the alleged extravagance and exaggeration of plaintiff’s claim. If cubic yardage was the unit upon which the price was predicated, then the plaintiff’s claim cannot exceed five or six hundred dollars; whereas, if the square yard was the unit, the chasm between the parties becomes very wide. On the basis of cubic yardage, the plaintiff is claiming at the rate of more than $4.00 per yard. This is perhaps a sufficient indication of the general character of the record. It will suffice, also, to an
understanding of the error at the trial which we are about to point out.
The case, as presented to us, is involved in some confusion by the construction which the plaintiff puts in his brief here, upon his pleading in the court below. This attitude may be indicated by the following short quotation from his brief:
“Under this proposition, appellant complains of the theory on which the court submitted the case to the jury, claiming that the suit is on the contract, therefore full performance must be shown, in order to recover. The case was tried on Count 1 of the petition.
That count is nothing less than a petition in quanhim meruit.”
(The italics are ours.)
In the foregoing statement, the appellee-plaintiff is gravely in error. If his contention at this point were correct, he would fail for want of any evidence in support of a
quantum meruit.
He introduced no testimony on the question of reasonable value. As already indicated by us, his “Count 1” was upon the contract. His count upon the
quantum meruit
was expressly withdrawn. The court properly submitted the case as upon an express contract. The failure of plaintiff to introduce evidence of reasonable value was consistent with his count upon the express contract. This same attitude appears to have been taken by plaintiff in the court below, and in dealing with it, the court became involved in error. Instruction 7 givexi by the court was as follows:
“The plaintiff admits that he quit said wox’k before it was completed, but claims that, under his contract with the defendant, the defendaxit was tp pay him every two weeks while said work was in progress, upon estimates to be made by the city engineer of Crestón, and that the defendant failed to have such estimates made, and failed to pay plaixxtiff any money thereon, and that, because of such failure on the part of defendant, the plaintiff was compelled to abandon such work before its completion. As to this you are instructed: That the burden is upon the plaintiff to prove by a preponderance of the evidence that the defendant agreed to have such estimates made every two weeks and to make payment thereon, and that the defexxdant failed to have any estimate made on said work or to pay plain
tiff therefor. If you so find, from the evidence, then plaintiff would be justified in abandoning said work, and would not be liable in damages to the defendant for any failure to complete said contract.
But unless you do find from a preponderance of the evidence that the defendant agreed to have such estimate made every two weeks and to make payment to plaintiff thereon as claimed by plaintiff, then plaintiff would be entitled only for the amount of work done by him at the price which you find, from the evidence the defendant had agreed to pay plaintiff for such work, less any damages the defendant may have
sustained,
by the failure of Ihe plaintiff to complete said work, if any, if you find that plaintiff abandoned said work, and was not justified in so abandoning it.”
The italics are ours, and they indicate the point of departure of the instruction from the correct statement of the law.
In an action upon a contract to recover the contract price'for services rendered, it is incumbent upon the plaintiff to plead and to prove either substantial performance of the contract on his part or that the failure of performance on his part was justified. In this case, the plaintiff did not plead performance on his part, but did plead justification for failure of performance. If the failure of performance was justified, then the plaintiff was entitled to recover his contract price for the work done. On the other hand, if the failure of performance was not justified, then the plaintiff could recover nothing upon his contract. In such case, he could recover upon a
quantum meruit,
notwithstanding the failure of performance without justification. But the measure of his recovery would be the reasonable value of his services,
not exceeding the contract price,
and subject to offset for damages, if any, sustained by the defendant by reason of the breach of contract.
Pixler v. Nichols,
8 Iowa 106;
Corwin v. Wallace,
17 Iowa 374.
The function of the contract in such a case is to operate in favor of the defendant as a limitation upon the maximum of plaintiff’s recovery in the event of proof that the reasonable value exceeded the contract price. But all this is quite hypothetical. Inasmuch as the plaintiff submitted his case solely upon the issue of an express contract, he was bound to justify his failure of performance in order to recover at all; and failure to so justify.
entitled the defendant to a verdict. The italicized portion of Instruction 7 purported to allow recovery notwithstanding the unjustifiable breach of the contract by the plaintiff. Such recovery could not be had, except upon the
quantum meruit.
Plaintiff had expressly withdrawn his count upon the
quantum meruit,
and in effect elected to stand upon the express contract. The instruction was, therefore, a clear departure from the pleadings, and was erroneous for that reason.
For this error, the judgment must
be
— Reversed.
Stevens, Faville, Kindig, Wagner, and Grimm, JJ., concur.
Morling and De Graee, JJ., dissent.