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is the ultimate fact to be found by the jury, and it must be found from the evidence with respect to the location of the street, the number of persons who have occasion to use it, the surrounding circumstances, and all the conditions bearing upon this question. Moreover, if a street were in fact insufficient for the public needs, but if no one else were attempting to use it at the time of the accident, and there was ample room for the wagon or carriage to pass, it may well be that the person who complains may not have any cause for complaint upon that ground. The question is, was the street sufficient for the purposes of the plaintiff at the time of the accident? If it was, then it was not material whether the street was opened and worked sufficiently wide to meet all public requirements or not. If it was of sufficient width and reasonably safe within that width to permit the plaintiff to pass over it at the time, and he departed from the traveled part without cause for doing so, he cannot complain that the street was not worked to a wider extent upon the sole ground that others at other times may have required or might require more space in passing over it. The defect, if any there be in this regard, under all such circumstances, would not cause nor directly contribute to the injury, and therefore the person injured may not complain, although others might have cause to complain under different circumstances.

From what has been said, it follows that the judgment should be, and it accordingly is, reversed, with directions to the district court to grant a new trial. Costs to appellant.

MCCARTY, C. J., and STRAUP, J., concur.

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FOULGER v. MCGRATH et al.

No. 1894. Decided May 27, 1908 (95 Pac. 1004).

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1. APPEAL AND ERROR—HARMLESS ERROR_NATURE AND FORM OF

REMEDY.—Where a building contractor sued on an express contract for an agreed price for work, but with defendant's consent amended the complaint before the trial, by averring that such price was the reasonable value of the work, and the answer claimed that the reasonable value was less than that claimed by the contractor, and the case was tried on the theory that the action was based on quantum meruit, it was not prejudicial error to submit the case to the jury upon that theory, restricting any

recovery to an amount not exceeding the contract price. 2. WORK AND LABOR—EFFECT OF EXPRESS CONTRACT.—Though

building contractor may not abandon a contract and recover more than the contract price upon a quantum meruit, where the stipulations have been departed from by consent of the parties, and it doubtful whether the contract as a whole has been abandoned, he may sue upon a quantum meruit, leaving it the owner to insist upon the contract to limit recovery to the stipu. lated price, or to claim damages for noncompliance with the contract, or the contractor may sue upon the contract and a quantum meruit in separate counts, or a contractor, on full performance by him, may sue to recover the amount due without

specially declaring upon the contract. 3. CONTRACTS_SUBSTANTIAL PERFORMANCE.—Though a building con.

tractor may not depart from the terms of a contract and re. cover as upon a quantum meruit, a substantial compliance there. with in good faith entitles the contractor to recover on the contract, with a right to the owner to recoup any damages sustained through the contractor's failure to literally comply with the contract.

4. EVIDENCE-EFFECT OF OPINION EVIDENCE-CONFLICT WITH OTHER

EVIDENCE.—Though a conclusion stated by a witness may sometimes support a finding and judgment, it cannot do so where it is

contrary to the facts established. 5. WORK AND LABOR-AMOUNT OF RECOVERY.—Though a building

contractor suing on an express contract to recover for work can recover the full price, on showing compliance with the contract, and in the absence of proof of fraud, etc., on his part, where he relies on a quantum meruit, he can only recover the reasonable value of the work done, waiving any profits arising under the contract.

6. SAME—That the sum received from an insurance company by

the owner of a building destroyed by fire to replace it exceeded the reasonable value of the new building does not entitle the contractor replacing the building to recover such sum in an action on a quantum meruit.

7. SAME-EVIDENCE-SUFFICIENCY.–Verdict, in an action by a

building contractor to recover the reasonable value of work done, held excessive.

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by Fred Foulger against John McGrath and another. The action was dismissed as to defendant John M. McGrath, and from a judgment for plaintiff, defendant Mary McGrath appeals.

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FRICK, J.

This is an action to recover a balance alleged to be due for the construction of a certain building with additions thereto. The respondent substantially alleges in his complaint that in January, 1906, he and the appellant entered into a written agreement, whereby respondent agreed to build, replace, and repair the house, kitchen, and wash room of the appellant, which were damaged and partially destroyed by fire, for the agreed price of $877, and which is the reasonable value thereof. The agreement is set forth in full in the complaint, and it is provided therein that respondent shall “build, replace, and repair the house, kitchen, and washroom and put all in good condition to the acceptance and approval of John McGrath and his wife for the sum of $877, to be paid from the insurance money when it

is handed over to them by the insurance company." It is further alleged that, in pursuance of said agreement, the respondent entered upon the construction of said buildings and completed them in March, 1906; that the appellant received the money from the insurance company in February, 1906; and that appellant had paid for labor performed and material used in said buildings the sum of $324.27, leaving a balance due to respondent of $552.73, for which he demanded judgment. Appellant answered and set up various defenses. She alleged that the contract mentioned in the complaint was obtained by misrepresentation and fraud practiced upon her and her husband by respondent; that the price fixed in the agreement was agreed to by her and her husband solely upon the representation of the respondent that it was reasonable; that neither of them knew, or had any information with regard to, the value of the material and labor necessary to reconstruct said buildings, and relied wholly upon the statements of respondent with respect thereto; and that the buildings were not constructed with proper material, were not in good condition, and had not been accepted. The only other averments in the answer which we deem material, in view of the state of the record, are as follows: “Defendants allege that all the work done by plaintiff in repair of the said house was not and would not be reasonably worth to exceed the sum of $400, even if the same had been done in a workmanlike way, and as in fact done it is reasonably worth, as defendants are informed and believed, and so allege the fact to be, not to exceed the sum of $324, which last-named sum,” it is alleged, was paid for labor and material by the appellant. A trial was had to a jury, which resulted in a verdict in favor of respondent for the sum claimed by him against the appellant, upon which the court entered judgment, and she alone appeals.

Just before the trial commenced, respondent's counsel, with the consent of appellant's counsel, amended the complaint by interlining the words which we have italicized above, and which are as follows, "and which is the reasonable value thereof,” referring to the buildings that were constructed by respondent. With the complaint so amended, and without any objection, the parties proceeded with the trial, at which respondent’s counsel proceeded upon

the theory as if the action were based on quantum meruit, instead of upon an express contract. In view of this, respondent proved the reasonable value of the labor and material used in the construction of said buildings by himself and other witnesses, and upon cross-examination the reasonable value of all the material and the value and character of the work was gone into item by item by appellant's counsel. All this was done without objection by either party, and the case was tried upon the theory of reasonable value, although the contract was introduced in evidence. Appellant's counsel apparently relied upon this evidence of reasonable value, since he introduced no other evidence whatever in support of the averments in the answer.

Respondent also introduced evidence tending to show that the buildings were completed, that they were in good condition, and that the workmanship and material were such as were usual in buildings of the character of those in question; and, further, that during the progress of the work no objection had been made by appellant or her husband to either of the workmanship or material, and that they had received the insurance money. It further developed at the trial that the appellant was the sole owner of the property, and that her husband had no interest therein. After respondent rested, appellant's counsel moved for a non-suit in favor of both the appellant and her husband. The motion was confessed by respondent's counsel as to the husband, presumably upon the theory that the action was not upon the contract, but upon a quantum meruit merely against the real owner of the property for the reasonable value of the buildings. The court, accordingly, dismissed the action as against the husband, and overruled the motion as to the appellant. It is now asserted that this ruling constitutes error. We think, for the reasons hereinafter stated, that there was no prejudicial error in overruling the motion. In any event,

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