Easton v. Quackenbush

delivered the opinion of the court.

1-4. For the first assignment of error it is enough to say that the complaint does state a cause of action in that it avers the making of the contract; that the plaintiff has fully performed the same upon his part; and that the defendant has not paid any of the specified price except a certain amount credited thereon,

“In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance ’ ’: Section 88, L. O. L.

Without reference to the matter of proof the declaration of the plaintiff was sufficient as a matter of pleading. In the view we take of this case the second specification amounts merely to harmless error. Under the pleadings as framed, the court could not in any event direct a verdict for the defendant because he himself had tendered a judgment in favor *378of the adverse party. The motion for a new trial was so indefinite that the court was justified in refusing to allow it.

5, 6. Treating the case upon what we deem the merits, we note first as to the pleadings that, as stated in Catlin v. Jones, 48 Or. 158 (85 Pac. 515), where an essential fact has been omitted from the complaint an issue as to such fact made by the answer and reply cures the defect in the complaint. The same doctrine is taught in Treadgold v. Willard, 81 Or. 658 (160 Pac. 803).

Another well-settled principle is that if one operating under a special contract performs service for another which is of value to the latter, recovery may be had for the same on the qucmtum meruit, unless there has been a willful abandonment of the undertaking by the party doing the work: Tribou v. Strowbridge, 7 Or. 156; West v. McDonald, 64 Or. 203 (127 Pac. 784, 128 Pac. 818); Wuchter v. Fitzgerald, 83 Or. 672 (163 Pac. 819).

7, 8. Conceding, as we must, that the complaint was devoid of an allegation that the labor performed was of any value to the defendant, yet it is clear that, under the authorities already cited, the answer supplied that defect and invited investigation on that basis. The plaintiff accepted the issue thus tendered with the result already stated. The position now assumed by the defendant would have been apropos if he had been discreet enough to rely upon his denial of performance and put the plaintiff upon his proof of his allegation in that respect; or if, in the abundance of caution in addition thereto he had merely pointed out wherein the alleged performance of the contract was not in. accordance with the terms thereof. It is apparent, however, that the answer recognizes the labor of the *379plaintiff as of material value to the defendant, and, accordingly raises a question on that subject. Now at this juncture the defendant cannot complain of his defeat in the contest which he himself has invited. Had the matter of reasonable value been suggested for the first time in the reply it would have been a departure disastrous to the plaintiff. It is not so, however, when the defendant is the first to stray from the course of litigation initiated in the complaint and wander upon a new path. In such an instance the plaintiff is not at fault if he follows the defendant’s lead. In short, while the complaint is defective as one declaring upon the quantum meruit, yet that fault is aided by the answer in the respect mentioned. For these reasons the judgment must be affirmed.

Affirmed.