Sarvis v. Childs Bond Etc. Co. , 49 Idaho 79 ( 1930 )

Appellant petitions for a rehearing, and charges that the court's opinion "gives the trial Judges and the bar of the state definitely to understand that in a suit upon a contract in which the complaint contains no allegations as to reasonable value of the services sued for, the plaintiff can recover upon a quantum meruit."

Governed solely by the facts in the instant case and all others of similar content, the above is just exactly what we meant to say, that far and no further. We have in nowise sought to reverse or modify the general rules of pleading or practice incident to actions in contract and quantum meruit. Such a defective complaint as petitioner cites is open to demurrer, and the evidence sought to be adduced thereunder subject to all objections for variance, surprise, prejudice and what not.

But, when the adverse party has failed to exercise such rights, and permitted a mass of evidence to confront the court, showing services performed under an indefinite contract, the agreed value of which was never established, but which services the evidence shows were worth a reasonable sum, the trial court is not to be stultified into denying a plaintiff his patently earned remuneration. The problem is restricted entirely to the platter of facts dished up to the court. The rule announced does no violence to established rules of pleading and practice, but rests in reason and common sense, its purpose being "to obviate another action on the same facts and evidence." (Donovan v. Harriman, 139 A.D. 586, 124 N.Y. Supp. 194.)

Petition for rehearing denied.

Givens, C.J., and Budge, Varian and McNaughton, JJ., concur.