Salgado v. Figueroa

33 P.R. 891

• Court: Supreme Court of Puerto Rico
• Decided: January 22, 1925
• Docket: No. 3360
• Status: Published

Opinion

Mb. Justice .Aldbey

delivered the opinion of the court.

The amended complaint in this case sets up two separate causes of action. The allegations of the first are .that the plaintiff is' a building contractor and contracted with the defendant to build a house for him, for which he was to receive, if he. succeeded in building the house for $5,000 or less, half of the difference between the actual cost of the house and $6,000. Under these conditions he began the work after having made an estimate and ascertained that he could build the house for $5,000, in which case he would receive $500, or half of the difference between $5,000 and $6,000; but after he had begun the work the defendant instructed him to make certain modifications and additions to the original plan, and wlién the plaintiff informed him that such alterations would require an additional expenditure of from $3,000 to $4,000 the defendant replied that in any event he would pay the plaintiff the $500 offered him as half of the $1,000 under the original contract. That thereby the cost of the building was increased to $9,000 and the defendant refuses to pay the plaintiff the said $500 and also another $500 which the plaintiff considers is the value of his work for the modifications made beyond the original contract. In the second cause of action it is alleged that the plaintiff supplied all of the sand necessary for building the house, amounting to 215 meters, which at the rate of $2.50 per meter amounts to $537.50, a sum which the defendant also refuses to pay him.

A demurrer was interposed to the said complaint on the ground of failure to state facts sufficient for the two causes of action and the court sustained it as to the $500 claimed for the extra work done by the plaintiff for the defendant, because it was not alleged that the said sum was the actual or reasonable value of the work done, it being a mere estimate made by the plaintiff. The court also sustained the demurrer as to the claim for the sand on the ground that it was not alleged that there was an agreement for its purchase or that the $537.50 claimed was the actual or reasonable value thereof. In view of this ruling the plaintiff moved for judgment, which was entered dismissing the complaint with costs. From that judgment the present appeal was takeh.

Although the complaint sets up only two separate causes of action, the claims made therein are three; that is, $500 fó'r building the house under a contract between the parties, $500 for extra work not called for by the contract and $537.50 for the sand furnished by the plaintiff for the construction of the house. Considering the terms of the decision of the court below on which the judgment appealed from is based, we understand that the complaint was declared insufficient only as to the last two claims. However, the appellee - alleges that the first claim for $500 is not well pleaded for the’reason that as the obligation to pay was subject to 'the’condition that the house should be built at a (post-not. exceeding $5,000, it should have beqn- alleged that tfi,© .said condition .had, been complied with. The., appellee, yqruld be right;in.this.contention if it had not been alleged fq, fhe complaint that when the plaintiff called fthe defendant’s-attention to,.the fact that the additions and modifica-! "lions required-by-"him would increase the cost of the,, work the defendant replied, that in any event he would .pay. the $^0Q., which h© had- .promised the plaintiff as half of- the $1,000 stipulated for in the original contract. Therefore*, considering the acceptance alleged, the complaint is suffi-. <?ient,.as to the-said ,$50(3.

uV With regard,to-the other $500 claimed for the plaintiff’s, work in making-the additions and, modifications request.ed) by - the- defendant .after the agreement was made .and, after the. commencement -of .the work,, the complaint is insufficient^ because as it was-nof alleged that there was any agreement, tp. pay for -that extra- work, it should have been alleged; tfiaft ,t]ie .amount .claimed w;as the reasonable value thereof, inasmuch as .section 1486 of the Civil Code provides that, where, there is no agreement for remuneration for the hire, of; professional- services the party entitled to remuneration^ may sue and recover from the adverse party-the reasonable, value of his services and such reasonable value must be established by proof and not be based on thp personal. estimate of the one rendering the services.

Nor are the allegations of the second cause of action sufficient, because it alleges no contract for the delivery of. the sand - for a fixed sum -and the complaint should have, alleged that the $2.50 per meter of sand- was the reasonable, value,,,for the defendant is not bound to-pay the amount arbitrarily fixed as th.e value of the sand. •

„ In view-of the conclusion - reached in .accord with those, of the court below, and considering that instead, of amending his, complaint the plaintiff preferred to have, judgment rendered against him, we-, might dismiss the complaint as regards the second and third claims, but in the interest of justice- we shall, not do so, for the case- must he remanded bemuse,'the. complaint is sufficient- as...to.fhe first,claim,and w;e -prefer,to -give,.the plaintiff an opportunity to .amend the. complaint as-to-the other.two .claims. .

For the foregoing reasons the judgment. appealed -from is reversed in so far as it dismissed the complaint as -a, whole and .affirmed as. to the second and third- claims set-up.therein, and;-the .case is -remanded for further.-proceedings not,, ineom. sistent -with .this -opinion- 4

Reversed-impart'and remanded.

’’Chief Justice Del Toro and Justices 'Wolf, Hutchison and Franco Soto concurred! ■ - ' '