Ward v. Stimson

[337]

SHAW, J.

Action to recover the reasonable value of materials furnished and labor performed by plaintiff at the special instance and request of defendants in repairing a steam boiler.

Judgment was rendered for plaintiff, from which defendants have appealed.

It appears without contradiction that, the boiler being in bad condition, defendants, upon an express contract, employed plaintiff to repair the same, at an agreed price of $124.50. The repairs called for the welding upon the boiler of what is termed a lip, some four and a half or five feet in length. Plaintiff himself testified that, while he did not recommend or guarantee that such repairs would proye successful, nevertheless, as done, it would have answered the purpose for which the welding was intended, if the state had allowed it. He says: “I did the work all right, but the authorities would not let it go”; that is, after the work was completed as ordered by defendants, the boiler inspector would not accept it. Thereupon plaintiff, in the absence of an express contract, and as ordered by defendants, furnished materials and did other work in repairing the boiler, for all of which, including the welding of the lip covered by the express contract, he sued herein to recover upon a

qucmtum meruit.

In defense of the action, the answer alleged, first, the making of the express contract and that the work was done thereunder; and, second, that not only the work so called for, but all work done by plaintiff was faulty, imperfect, and improperly done and performed.

[1]

As we view the case, it is unnecessary to consider the second defense pleaded, since the judgment must be reversed on account of insufficiency of the evidence to support the finding that while the work done under the express contract “was in progress and before the completion thereof by plaintiff, said defendants ordered plaintiff not to complete said work in accordance with said agreement, but ordered plaintiff to do different and other work in welding a patch in said boiler in place of extending and reinforcing the lip thereof, and that said work was done in said manner upon the order of said defendants through their said agent and engineer and not upon the advice or recommendation of said plaintiff and that plaintiff did not