Beck v. Schmidt

SHAW, J.

Action by plaintiff as the assignee of Franklin ■& Drain, constituting a copartnership, to recover upon

qiiantum meruit

for labor done and materials furnished at defendant’s instance and request in grading and improving a certain tract of land owned by defendant. Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant prosecutes this appeal.

It is alleged in the complaint that the reasonable value of the work done and materials furnished was the sum of $51,-095.74, upon which defendant paid $31,954.30 and no more, leaving a balance unpaid of $19,141.44, for which plaintiff • asks judgment.

In defense of the cause of action defendant by his answer avers that the work was done and the materials furnished pursuant to a written contract made between defendant and - said copartnership of Franklin & Drain, by the terms and provisions of which it was agreed that said work was to -be performed as a whole, but at prices therein stipulated for each class of work, and the whole completed by December 15, 1906. Defendant further avers that neither the contract price nor the reasonable value of the labor done and materials furnished is in- excess of $40,000, upon which he had paid $31,954.30, and denies that any balance remains due and unpaid by defendant for and on account of said work. It is further alleged that by said contract it was agreed that twenty-five'per cent of the valué of the labor performed and materials, furnished in doing the work should be reserved and not paid until thirty-five days after the expiration of the time for completion and acceptance of the whole of said .fwork; that neither said contractors nor any one for them has performed the whole work agreed to be done and performed,

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and that to complete the same will require an expenditure-by defendant of $5,000 over and above the contract price; that by reason of said failure to perform the contract in accordance with its terms defendant has been damaged in the sum of $25,000.

The court made findings as to the reasonable value of the work done and materials furnished, the amount paid thereon, and the balance remaining due and unpaid. In response to the affirmative allegations of the answer, the court found that Franklin