Martinez v. Yancy

SHAW, J.

Action in

quantum meruit

for work and labor alleged to have been performed by plaintiff for defendant at his special instance and request.

Judgment, from which plaintiff appeals, followed the granting of defendant’s motion for nonsuit made at the close of plaintiff’s evidence, which evidence tended to prove that in January, 1915, plaintiff, upon an oral offer made by defendant to lease to him a tract of land for a term of five years at a rental of one-half the crops produced thereon, entered upon and continued in possession thereof until October 12, 1915, at which time defendant refused to execute a written lease of the property. Thereupon plaintiff demanded payment for the work performed during the time he was in possession, to which defendant replied that as compensation he was entitled to and could take one-half of the crops produced during the year.

Appellant insists upon a reversal under the well-recognized rule that where one engaged in the performance of services under a contract is, by the wrongful act of the other party thereto, prevented from completing the work called for, he may treat the contract as at an end and recover in

quantum meruit

for such part performance.

(Hart

v.

Buckley,

164 Cal. 160, [128 Pac. 29].) As stated by Greenleaf on Evidence, volume 2, section-104, one may avail himself of an action upon

quantum meruit

“where the contract, though partly performed, has been either abandoned by mutual consent, or rescinded and extinct by some act on the part of the defendant.” It thus appears the rule is predicated upon the existence of a contract pursuant to the terms of which and prior to the extinguishment thereof the work has been done. In the instant case, however, plaintiff was not in possession of the property under and by virtue of a lease for five years or any lease other than for one year, as to which there was no repu

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