McDonald v. Thibault , 84 Colo. 470 ( 1928 )

THE trial court rendered judgment against the plaintiff in error, for $262.50, for services rendered to her by defendant in error, in connection with the sale of a hotel business. The judgment appears to have been arrived at upon a quantum meruit. The count in the complaint upon which the judgment was based was substantially as follows: That the defendants are indebted to the plaintiff in the sum of $525, on an account for services rendered by the plaintiff as a broker, in securing a purchaser for a hotel and restaurant business, fixtures, equipment, and other personal property, belonging to the defendants, which services were performed at the request of the defendants, in Lincoln county, Colorado, between October, 1926, and February, 1927; and that the defendants have not paid the same nor any part thereof. A general demurrer to this count was overruled, and error is assigned to this, as well as other rulings.

We find in the record no evidence of the reasonable value of the services rendered by the plaintiff, but at all events, the judgment must be reversed because of the error of the court in overruling the demurrer.

Disregarding its conclusions of law, the count in question alleged the performance of services by the plaintiff at defendant's request. This would be sufficient to raise an implied promise to pay. Leitensdorfer v. King, Adm.,7 Colo. 436, 4 Pac. 37, 5 Pac. 816; Campbell v. Shiland,14 Colo. 491, 23 Pac. 324. But the demurrer should have been sustained because of the omission of the pleader to allege either an agreed price, or the reasonable value of the services. See 26 Stand. Ency. Proc. 529; Murphy v.Taylor, 173 Pa. St. 317, 33 Atl. 1041; 22 Ency. Pl. Prac. 1369.

The judgment is reversed and cause remanded, with instructions to permit the plaintiff to amend his complaint as he may be advised.

MR. CHIEF JUSTICE DENISON, MR. JUSTICE BUTLER, sitting for MR. JUSTICE BURKE, and MR. JUSTICE CAMPBELL, sitting for MR. JUSTICE WHITFORD, concur.