costs of suit.

"(2) The court further finds that the allegations contained in the counterclaim of said defendant have not been sustained by

"(1) That the allegations of the plaintiff's | business is disputed, and the evidence is petition have been sustained by the evidence, | conflicting on that point. We think the eviin so far as to entitle the plaintiff to recover dence is sufficient to sustain the findings and upon a quantum meruit for services render- judgment of the court ignoring the alleged ed to said defendant for the time stated in contract as to salary and allowing the plainsaid petition; and the court further finds that tiff $50 per month for the time he was emsuch services were reasonably worth the sum ployed, as the reasonable value of the servof $50 per month, and that the time in which ices performed. A competent witness for the the plaintiff was in the employ of the said de- plaintiff testified without objection that the fendant was six months and twenty days; services of plaintiff were reasonably worth that such services in the aggregate are rea- $100 per month; while there was testimony sonably worth the sum of $333.32, for which on the part of the defendant that, in view of the defendant is entitled to a credit of $158.32, the circumstances under which the plaintiff leaving a balance due the said plaintiff in was allowed to render the services, they were the sum of $175, for which balance due the of no value. It is, however, contended that plaintiff is entitled to recover judgment with the findings are not within the issues, and that the judgment should be reversed upon that ground. It is earnestly and ably argued that the action is upon an express contract, and that as the contract alleged was not established there could be no recovery. The argument is based upon the rule, which seems to be generally maintained, that where he cannot recover upon an implied cona party declares upon an express contract tract, or on a quantum meruit. 9 Cyc. 749; Abbott's Tr. Br. vol. 2, p. 1704; Scholtz v. Schneck's Estate (Ind.) 91 N. E. 730; Martinez v. Runkle, 57 N. J. Law, 111, 30 Atl. 593; Dorrington v. Powell, 52 Neb. 440, 72 N. W. 587; Walker v. Irwin, 94 Iowa, 448, 62 N. W. 785; Pearson v. Switzer, 98 Wis. 397, 74 N. W. 214; Duncan v. Gray, 108 Iowa, 599, 79 N. W. 362; Hunt v. Tuttle, 125 Iowa, 676, 101 N. W. 509; Doyle v. Edwards, 15 S. D. 648, 91 N. W. 322; Ecker v. Isaacs, 98 Minn. 146, 107 N. W. 1053.

the evidence."

Thereupon judgment was rendered in favor of the plaintiff for $175 and costs, and the counterclaim of the defendant was dis

missed. A motion for new trial was duly filed by the defendant and overruled, and the

cause is here on error.

The evidence discloses that the oral agreement referred to in the pleadings relative to the purchase by the plaintiff of an interest in the business of defendant contemplated his investing in such business $12,000 to $15,000, by purchasing shares of stock in the corporation then owned or controlled by E. D. Metcalf, who held all but two of the shares of the entire capital stock of the company, and practically controlled its affairs, and the negotiations were between him and the plain

tiff. We do not understand it to be serious

ly contended that the defendant was entitled

to recover upon its counterclaim. But if the general statement in the brief to the effect

that the defendant should have recovered

substantial damages upon the counterclaim is to be taken as showing that counsel relies upon the proposition, and as a sufficient presentation thereof, without further argument, to require its consideration, we deem it necessary only to say that it is not perceived that the defendant established a right to so recover under the pleadings and evidence, so far as the failure of the plaintiff to perform the oral agreement for the purchase of an interest in the business is concerned. The evidence is conflicting as to the terms, conditions, and representations under which the plaintiff entered the store of defendant and performed the alleged services, and as to his acts while so employed, mentioned in the answer, and no good reason appears for not applying the usual rule in such cases.

[1] The fact that the plaintiff performed the services alleged in the petition is not disputed, and it appears that while employed in the store of defendant he was in charge of the clothing department. But that he was to receive any salary or compensation in case he failed to purchase an interest in the

In 22 Encyclopedia of Pleading and Prac

tice, at page 1378, the rule aforesaid, as ap-*
plied to actions for the recovery of compensa-
lows: "By the weight of authority, where the
plaintiff declares specially, without including
any quantum meruit count in his declaration,
that there is a special contract under which
and where the whole theory of his case is
he is entitled to compensation, a total failure
to prove such contract, or a material vari-
ance between the averments and proof in
regard thereto, is fatal, and he cannot re-
But where
cover upon a quantum meruit.
it is apparent that the defendant has not
been misled by such a variance it will be
regarded as immaterial, and the plaintiff
will be allowed to recover as upon a quantum
meruit."

tion for services rendered, is stated as fol

The general rule above stated does not obtain in some states. In the leading case in New York, the plaintiff claimed an agreed compensation for the sale as a broker of real estate, and the principle points litigated were whether such agreement had been made, or whether the plaintiff was in fact the efficient cause of the sale. The verdict was against the special agreement, but allowed the plaintiff a commission upon the sale; and it was contended that the plaintiff

could not recover as upon a quantum meruit. | 120 Wis. 169, 97 N. W. 907; Ware v. Reese, The court said: "(1) The complaint contains 59 Ga. 588; Childs & Rains v. Crithfield, 66 sufficient averments to enable the plaintiff to Mo. App. 422; Remy v. Olds, 88 Cal. 537, 26 recover the value of the services rendered, Pac. 355; Cowan v. Abbott, 92 Cal. 100, 28 without reference to the allegation of an Pac. 213; Van Arsdale-Osborne Co. v. Foster, agreed compensation. (2) At most, it was 79 Kan. 669, 100 Pac. 480; Willard v. Carrionly a variance between pleading and proof, gan, 8 Ariz. 70, 68 Pac. 538; Berry v. Craig, which might be disregarded, unless it mis- 76 Kan. 345, 91 Pac. 913; Moore v. Gaus & led the defendants, which was not pretended. Sons Mfg. Co., 113 Mo. 98, 20 S. W. 975; (3) This objection was not taken at the Murphy v. Quigley, 21 Ohio Cir. Ct. R. 313, trial." Sussdorff v. Schmidt, 55 N. Y. 319. affirmed in 65 Ohio St. 598, 63 N. E. 1131; And it is now said in New York to be the Rucker v. Hall, 105 Cal. 425, 38 Pac. 962; 2 settled law that under a declaration on a Abbott's Tr. Br. 1260; 2 Bates, Pl. Pr. Par. special contract, if the proofs fail to es- & Forms, 1275; Bliss on Code Pl. § 120. In tablish it, but do in fact show the rendition Berry v. Craig, supra, the action of the of services, a recovery may be had upon a trial court in overruling a motion to compel quantum meruit. Shirk v. Brookfield, 77 an election between the two counts was App. Div. 295, 79 N. Y. Supp. 225; Rubin v. sustained; the court saying: "The two Cohen, 129 App. Div. 395, 113 N. Y. Supp. counts were entirely consistent. Neither con843; Shaw v. Hotchkiss (C. C.) 143 Fed. tradicted the other. The facts stated in the 680. This is the rule also in North Carolina. first might be true, and the facts stated in Stokes v. Taylor, 104 N. C. 394, 10 S. E. 566; the second also might be true. If an exWittowski v. Harris (C. C.) 64 Fed. 712. press contract existed, recovery could not But in that state the Code allows a party be had upon an implied contract; but to to recover judgment for any relief to which meet the possible exigencies of the proof the facts may entitle him, although not de- the plaintiff had the right to go to the jury manded in his complaint. Wittowski v. Har- upon both sets of allegations." The Suris, supra. The New York rule is followed preme Court of Colorado, in Cramer v. Opin Nevada. Burgess v. Helm, 24 Nev. 242, penstein, 16 Colo. 504, 27 Pac. 716, discussing 51 Pac. 1025. In Connecticut it is held not the provision of the Code that there shall be error to render judgment for the reasonable no unnecessary repetition of the facts convalue of the work and labor performed, stituting the cause of action, say: "Duplicate where it is alleged that the contract was statements for the same cause of action are for an agreed price, and the proof fails in not absolutely prohibited. They may somethat particular. Brewster v. Aldrich, 70 times be necessary, and therefore permisConn. 51, 38 Atl. 894; Schmilovitz v. Bares, sible, as where there is reasonable cause to 75 Conn. 714, 55 Atl. 560. believe that the plaintiff cannot safely go to trial upon a single statement." And again the same court say, in sustaining the

[2] It is settled law that where the contract has been fully performed by the plaintiff, and nothing remains to be done but the pay-action of the trial court in refusing a motion ment of the money by the defendant, it is not necessary to set out or declare upon the special contract, but the liability of the defendant may be enforced under a count for the reasonable value of the services. In such case the contract may be used as evidence, and the recovery cannot exceed the amount thereby agreed upon; the only effect in such case of proof of an express contract as to price is that the stipulated price becomes the quantum meruit. 2 Ency. Pl. & Pr. 1009; 9 Cyc. 685, 686; 2 Abbott's Tr. Br. 1537; Harrison v. Hancock, 2 Neb. (Unof.) 522, 89 N. W. 374.

[3] It is also clearly settled by the weight of authority, and we think correctly, that a count upon a quantum meruit may be joined with one upon a special contract, although each states only a separate ground for substantially the same recovery. This may often be necessary, and is allowed for the purpose of meeting the exigencies of the proofs. Leonard v. Roberts, 20 Colo. 88, 36 Pac. 880; Spotswood v. Morris, 10 Idaho, 129, 77 Pac. 216; Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520, 1 L. R. A. (N. S.) 1050;

to compel a plaintiff to elect whether he would proceed upon a count alleging a special contract, or one seeking recovery upon a quantum meruit: "At common law it was the custom to plead the same cause of action in different forms, to avoid the objection of variance between the allegata and probata, but this practice should only be allowed under the reform procedure in exceptional cases, and then only to prevent a failure of justice. The Code does not absolutely prohibit such pleadings, but provides simply that the facts shall be stated in concise language, without unnecessary repetition. It is sometimes impossible to be certain in advance of the real ground of liability, and, while double pleadings should be restricted within the narrowest limits possible, without unnecessarily endangering plaintiff's rights, or subjecting him to the danger of a nonsuit, in this case the trial court properly refused the defendant's motion to compel the plaintiff to elect upon which count he would proceed."

[4] The petition in the case at bar contains but one count. It is alleged, however, that

his services was $100 per month, and also [cent case to decide the question, deeming it that his said services were reasonably unnecessary, but assumed, for the purposes worth that amount. Thus in one count a of the case, the view taken of the complaint claim under a special contract is united with in the Wisconsin case of Beers v. Kuehn. one for the reasonable value of the services | Little Nell Gold Min. Co. v. Hemby, 45 Colo. rendered, and the allegations seem to be suffi- 582, 101 Pac. 981. In Beers v. Kuehn, supra, cient to support either claim. This does not the Wisconsin court say: "Now, had the render the petition demurrable on the ground complaint contained two separate counts, one that several causes of action are improperly to recover an agreed price, and one to recovjoined, for that ground of demurrer applies er the reasonable value, and had the proofs only where causes of action which are not been the same as they are in this record, permitted to be joined are embraced in one there would be no doubt of the right of the pleading. Pomeroy's Code Rem. § 447; 1 plaintiffs to recover the reasonable value of Kinkead's Code Pl. § 20; Hartford v. Ben- the work in case the jury found that by nett, 10 Ohio St. 441; Ridenour v. Mayo, 29 honest and mutual mistake the minds of the Ohio St. 138. The irregularity consists in parties had never met and assented to the disregarding the statute which provides that same terms of contract. In the present case when the petition contains more than one the complaint blends a cause of action upon cause of action they shall be separately express contract for the agreed price with stated and numbered. Comp. St. 1910, § 4380. a cause of action upon implied contract for And the plaintiff might have been required the reasonable value of the work. The alon motion to comply with the statute, or ob- legations are entirely sufficient to make a jection might have been made by motion to good complaint upon both causes of action, make the petition definite and certain. but the trouble is they are not stated separately, as the rules of pleading require. While this is poor pleading, it is not fatal to the causes of action thus blended. Advantage of the error must be taken by motion to make definite and certain. Baxter v. State, 9 Wis. 38. The defendant, not having chosen to take advantage of the error, but having gone to trial upon a complaint which contains sufficient allegations to cover both causes of action, should be prepared to meet them both."

[5] We cannot agree with counsel for the defendant, plaintiff in error here, that the allegation as to the reasonable value of the services is to be regarded as surplusage. It is clearly neither redundant nor irrelevant. Redundancy is described as excessive statement, or as consisting of repetition. "An allegation is irrelevant, when it does not relate to or affect the matter in controversy, and when it can in no way affect or assist the decision of the court." Phillips on Code Pl. § 281; 1 Kinkead's Code Pl. § 121. "In a legal action, all matter stated in addition to the allegations of issuable facts, and in an equitable action all such matter in addition to the averments of material facts affecting the remedy, is unnecessary, and there- not sit. fore immaterial and redundant." Pomeroy's Rem. & Remed. R. § 551. A distinct issue was presented by the allegation in question, WYOMING CENT. IRR. CO. v. FARLOW, in connection with other averments of the petition.

Taking the view of the case above stated, it follows that the judgment must be affirmed, and it will be so ordered. Affirmed.

BEARD, C. J., concurs.

SCOTT, J., did

County Treasurer.

(19 Wyo. 68)

[6] The form of the petition not having (Supreme Court of Wyoming. June 24, 1911.)

been properly challenged, it is to be construed the same as though there were separate statements of two causes of action, one upon an express contract for the agreed price, and one upon implied contract for the reasonable value of the services rendered. Beers v. Kuehn, 84 Wis. 33, 54 N. W. 109; Elder v. Rourke, 27 Or. 363, 41 Pac. 6; Usher v. Hiatt, 18 Kan. 195; Sucke v. Hutchinson, 97 Wis. 373, 72 N. W. 880; Waterman v. Waterman, 81 Wis. 17, 50 N. W. 668; Lewis v. Railroad, 95 N. C. 179; Noyes Carriage Co. v. Robbins, 31 Ind. App. 300, 67 N. E. 959; Cann v. Rector, etc., 111 Mo. App. 164, 85 S. W. 994; Remmers v. Shubert (Mo. App.) 134 S. W. 1042; Cosgrove v. Burton, 104 Mo. App. 698, 78 S. W. 667. The Supreme Court of Colorado declined in a re

1. CONSTITUTIONAL LAW (§ 68*) - JUDICIAL POWERS POLITICAL QUESTIONS-ADVISABILITY OF TAX.

The contention that holding the property of a canal subject to taxation would tend to retard the development of the resources of the state did not go to the validity of the tax; the advisability of the law being for the Legislature.

[Ed. Note.-For other cases, see Constitutional 2. TAXATION (§ 159*) — PROPERTY SUBJECT — Law, Cent. Dig. §§ 125-127; Dec. Dig. § 68.*] OWNERSHIP.

Deeds by a canal company, by which it sold perpetual water rights to have the use of the tion system, constructed or to be constructed for water flowing through that portion of its irrigathe irrigation of the lands therein described, each water right representing and being the proportionate right to use one-half cubic foot of of each year, did not show an intention to part water per second during the irrigation period with title to or over the canal, and did not en

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

title the canal company to show the rights of others therein, in proceedings by it to enjoin collection of a tax.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 279; Dec. Dig. § 159.*]

rigation period of each year." And again: "Said water right, so sold and conveyed as aforesaid, shall be a proportionate right to the use, for domestic and irrigation pur

3. TAXATION (§ 610*)--COLLECTION-RESTRAIN- Poses upon the lands herein described, of ING-CONDITIONS PRECEDENT.

Where a canal company had the legal title to the entire canal and was the absolute owner of a large part of it, and had neither paid nor offered to pay any part of the taxes thereon, it was not in a position to invoke powers of the court of equity in its behalf, in proceedings to enjoin the collection of the tax, by showing the extent of the interest of others in the canal, and secure relief to that extent.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1244; Dec. Dig. § 610.*]

4. TAXATION (§ 608*)-EXCESSIVE TAXATIONREMEDY-APPLICATION TO BOARD OF EQUAL

IZATION.

Where a company was the legal owner of a canal and the tax thereon was not illegal in the sense of being unauthorized, the remedy of the company if it was taxed for interests therein belonging to others was by application to the board of equalization for correction of the assessment, and not by injunction to restrain collection.

[Ed. Note. For other cases, see Taxation,
Cent. Dig. §§ 1230-1241; Dec. Dig. § 608.*]
On petition for rehearing. Denied.
See 114 Pac. 635.

BEARD, C. J. [1] Counsel for plaintiff in error have filed a petition for a rehearing in this case, and in their brief in support of the same still insist that the canal in question should not be held to be subject to tax

the water authorized by the permits of the state engineer to said party of the first part, to be appropriated through and by means of its canals, together with a proportionate right, share, and interest in the use of said canals and lateral ditches, with all rights incident thereto," etc. [2] We think it thus clearly appears from the petition that the company holds the legal title to the entire canal, and that it was not its intention to part with that title or its control over the canal, except in some one of the three ways mentioned in the opinion, which, as there stated, has not been done. Second. The company not only held the legal title to the entire canal, but was the absolute owner of a large part of it, and owned

no lands and had no contracts with other owners of lands to which the part of it so owned might in the future become appurtenant. Being such owner, it was required in justice and equity to pay what was justly and equitably due; and, having neither paid nor offered to pay any part of said taxes, it is not in a position to invoke the powers of a court of equity in its behalf. U. P. Ry. Co. v. Ryan, 2 Wyo. 408; Horton v. Driskell, 13 Wyo. 66, 77 Pac. 354; National Bank v. Kimball, 103 U. S. 732, 26 L. Ed. 469.

[3] It has also been held by this court that where a person has some personal property than he claims to own, the remedy is by subject to taxation, but is assessed for more the correction of the assessment, and not by application to the board of equalization for injunction to restrain the collection of the tax.

Board of Com'rs v. Searight Cattle Co., 3 Wyo. 777, 31 Pac. 268; Ricketts v. Crewdson, Treas.. 13 Wyo. 284, 79 Pac. 1042, 81 Pac. 1: Crewdson v. Nefsey Co., 14 Wyo. 61, 82 Pac. 1. See, also, N. P. R. R. Co. v. Patterson, 10 List v. Territory, 4 Ariz. 186, 37 Pac. 370, 39 Mont. 90, 24 Pac. 704, and Delinquent Tax Pac. 328. In the present case the tax is not

ation, because to so hold would tend to retard the development of the resources of the state. That would be a proper argument to present to the Legislature, but the courts are without authority to exempt property from taxation, for that or any other reason, which the statute does not exempt. It is further insisted that the demurrer to the petition should have been overruled, and plaintiff in error permitted to show the extent of the interests of others in the canal, and should have afforded the company relief to that extent. To this there are two answers: First. The deeds as recited in the petition do not purport to convey any title to the canal, but only the right to use it for the purpose of conducting water to the lands of the grantees. The language is: "The said party of the first part does hereby sell, transfer, convey, and quitclaim unto said party of the second part perpetual water right, to have the use of the water flowing through that portion of its irrigation system constructed or to be constructed for the irrigation of lands herein described, each water right representing and being the proportionate right to use one-half cubic foot of water per second of time during the ir*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

an illegal tax in the sense of being a tax not authorized by law, and, as we hold that

the interest of the company in the canal is subject to taxation, the case comes within the rules announced in the cases above cited, and the petition does not present a case for equitable relief by way of injunction. The former opinion is adhered to, and a rehearing denied. Rehearing denied.

POTTER, J., concurs. not sit.

SCOTT, J., did

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes