Mohney v. Reed

Ellison, J.

This action is stated in a petition declaring on a written contract for building defendant a house for a price therein specified. Plaintiff alleges that he duly performed all the conditions of the contract except as to the porch roof, the flue in the kitchen, the painting, and a portion of the flooring, which modifications or changes were made at defendant’s request, and for which he agreed to pay. That the contract and its conditions hp duly fulfilled as thus modified. There was a second count on an account for a sum amounting to $51.45.

The answer denied the conditions of the contract had been performed and set up damages by way of recoupment, on account, among other things, of plaintiff failing to furnish the kind and grade of material, and that he failed to perform the work in a skilful and workmanlike manner.

The reply pleaded, among other things, that defendant waived any damage by reason of any of said matters of non-compliance alleged in the answer. Evidence was received as to waiver and instructions given in relation thereto. A trial resulted in a verdict for plaintiff and defendant appeals.

I. We are of the opinion that the matter of'waiver either in the evidence or instructions should not have been permitted to make its appearance at the trial. It is a well-settled law in this state that, when a petition upon a written contract alleges specific performance of the conditions and obligations on the part of plaintiff, there can be no recovery upon a waiver not pleaded. Lanitz v. King, 93 Mo. 513; Pier v. Heinrichoffen, 52 Mo. 535; First Nat. Bank v. Hatch, 78 Mo. 13; Nichols v. Larkin, 79 Mo. 271. We apprehend the court permitted the matter of waiver to come into the case under the allegations in the replication which, as was stated, pleads a waiver. But we think it was not, in this case, proper matter for reply under the code. The statute, section 3524, Revised Statutes, 1879, is that, “where the answer contains new matter, the plaintiff shall reply to such new matter, denying generally or specifically the allegations controverted by him, or any knowledge or information thereof, sufficient to form a belief, and he may allege in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to the new matter in the answer.” Now the petition in this case alleges a performance of the contract, and the answer does not set up any new matter as to this, but denies the allegation. The issue is thus complete. Again, the reply, under this statute, may set up', in defense of the new matter in the answer, any new matter not inconsistent with the petition. The petition alleges performance, but the reply, in effect, alleges non-performance, in that the performance was waived. This is not consistent with the allegation of the petition. If the petition had been on a quantum meruit and the answer had set up the contract and non-performance, this being new matter, the reply might consistently have met it with the plea of waiver. Such' was the case of Wolfe v. Howes, 20 N. Y. 197.

So if the petition, being on the contract, had alleged the facts, that is to say, performance of all that was performed and waiver of all that was waived, it would have been proper to receive testimony of the waiver alleged. But an allegation in the reply which ought to have been made in the petition is not sufficient and does not cure the defect. Pomeroy on Rem. and Rem. Rights, sec. 579; Gould’s Plead., chap. 4, sec. 8, p. 163; Webb v. Bidwell, 15 Minn. 479; Durbin v. Fisk, 16 Ohio St. 534.

II After an examination of the evidence before us we are confident plaintiff’s action should be quantum meruit. Much of the difficulty surrounding the case now, results from the action being founded on the written contract. When such is the petition there can be no recovery on the quantum meruit, and as the judgment will be reversed plaintiff may have the opportunity to amend. Defendant, however, contends that an action on a specific contract cannot be changed by amendment to one on quantum meruit. This point was ruled otherwise in Eyerman v. Mt. Sinai Cem. Ass’n, 61 Mo. 492.

The foregoing disposition of, this case renders it unnecessary to go into a detailed examination of the numerous exceptions taken by defendant at the trial.

The judgment, with the concurrence of all, is reversed and the cause remanded.