Eureka Mfg. Co. v. Wimberly.
[73 South. 871,
Division A.]
Work and Labor. Recovery on quantum, meruit.
Where defendant offered plaintiff five hundred dollars to' tear down and rebuild a house and plaintiff, without formally accepting the offer, proceeded to do the work pursuant thereto, this amounted to an acceptance of the offer, and he was not permitted to recover on the theory that he did the work under an implied promise on the part of defendant to pay him therefor so much as it might he reasonably worth.
Appeal from the circuit court of Hinds county.
HoN. W. H. Potter, Judge.
Suit by A. C. Wimberly against the Eureka Manufacturing Company. -From a judgment for plaintiff, defendant appeals. .
The appellant, through its manager, Shoemaker, made a contract with the appellee, Wimberly, for the removal by appellee of a building located at West King, to Jackson, Miss., and its re-erection at the latter place. The contract was verbal, and appellant claims that the agreed price to be paid appellee was five hundred dollars. The building was torn down by appellee, and during the course of its re-erection at Jackson, certain changes and alterations were made, nothing being said about any additional pay for these changes. Appellee claimed that he only agreed to supervise the work which -was to be paid for in full by appellant. Appellee brought a suit in the circuit court for one thousand, two hundred dollars, alleged to be due him as a balance on the contract. The cases went to the jury, who returned a verdict for three hundred and eighty-five dollars, from which comes this appeal.
The fifth count of the declaration, referred to in the opinion, contains the following allegation:
‘£ In consideration whereof the defendant promised to pay plaintiff such additional sum as the additional work was reasonably worth, and as he reasonably deserved therefor; and plaintiff avers that the original and áddi-*91tional work was reasonably worth the sum of one thousand, two hundred dollars.”
Green & Green, for appellant.
Geo. Butler, for appellee.
Smith, C. J.,
delivered the opinion of the court.
It appears from appellee’s own evidence that appellant offered him five hundred dollars to tear down and rebuild the house, and while he did not formally accept the 'offer, he proceeded to do the work pursuant thereto, which amounts to the same thing; so that he should not have been permitted to recover on the theory that he did the work under an implied promise on the part of appellant to pay him therefor so much as it might be reasonably worth. Whether or not appellee is entitled to additional compensation for extra work, if any, done by him because of changes made at the request of appellant in the plan for rebuilding the house is not presented by this record, for the reason that the declaration contains no count setting forth a claim therefor.
Reversed and remanded.
On MOTION TO CoEEEGT JUDGMENT.
The motion to correct the opinion heretofore rendered in this case is really a suggestion of error, arid will be treated as such. It may be that appellee’s claim for additional compensation for extra work alleged to have been done by him is presented by the fifth count for his declaration, and since a decision of that question is not necessary to a disposition of the cause on this appeal, we will express no opinion relative thereto. Consequently, the former opinion will be corrected to the extent of eliminating therefrom that portion thereof referring to such additional compensation, all'of which is contained in the last sentence of the opinion.