Burke v. Gaukler Storage Co. , 13 Mich. App. 536 ( 1968 )

13 Mich. App. 536 (1968) 164 N.W.2d 691

BURKE
v.
GAUKLER STORAGE COMPANY.

Docket No. 4,064.

Michigan Court of Appeals.

Decided September 26, 1968.

Leslie R. Middleton, for plaintiff.

George W. Burnard, for defendant.

LESINSKI, C.J.

Defendant Gaukler Storage Company claims that the circuit court erred in (1) finding a mutual termination of the contract for paving by Burke of defendant's lot, and (2) awarding $1,760.50 to plaintiff in quantum meruit.

This Court will only reverse findings of fact which are clearly erroneous. GCR 1963, 517.1; Insurance Company of North America v. Iroff (1967), 9 Mich. App. 151. The record shows sufficient evidence to support the circuit court's finding of mutual termination.

Defendant insists that the measure of the amount recoverable in quantum meruit must be the benefit to the party unjustly enriched rather than the expense incurred by plaintiff. The rule in this state is that a plaintiff in default may recover only the benefit to defendant and that a defendant in default is liable for plaintiff's costs regardless of the contract price or benefit to defendant. Arthur Hemminger v. The Western Assurance Company (1893), 95 Mich. 355; Nyman v. B.S. Chapin, Inc. (1931), 255 Mich. 442. It is unnecessary for this Court to decide what rule applies when, as in this case, neither party is in default, since the trial judge actually followed the rule defendant requests and cut plaintiff's claim for labor costs in order to reach a figure representing the worth of such labor to defendant. Plaintiff has accepted the ruling of the circuit court and defendant cannot assert plaintiff's right to appeal.

The finding of mutual termination and the award of $1,760.50 are affirmed. Costs to appellee.

T.G. KAVANAGH and FOLEY, JJ., concurred.