Gabrielson v. Hague Box & Lumber Co.

Citations

• 55 Wash. 342
• 104 P. 635
• 1909 Wash. LEXIS 759

Syllabus

<p>Logs and Logging — Contracts—Construction. In the absence of positive testimony or proof of custom, one who contracts to remove and deliver timber is presumed to supply all necessary means and appliances, and cannot recover on a quantum meruit for building a logging road to facilitate his operations.</p> <p>Pleadings — Separate Counts — Repetition. It is inconsistent with the spirit of the code to permit a person who has but one cause of action to allege, as distinct causes, one upon contract and another upon quantum meruit, as permitted at common law to avoid a variance; but he must state one cause in concise language without repetition.</p> <p>Election oe Remedies — Contracts—Breach. Upon breach of a contract whereby plaintiff was prevented from completing performance, he may elect to sue on the contract for partial performance and loss of profits, or waive the contract and recover upon quantum meruit, hut he cannot pursue both remedies.</p> <p>Trial — Instructions—Issues and Prooe — Submission—Election oe Remedies. Where plaintiff alleged in distinct counts, one cause of action for breach of contract and loss of profits, and another on quantum meruit covering the same suhject-matter, it is error to submit the latter issue to the jury where there was no evidence to warrant it; and is prejudicial, requiring a reversal (although no election was demanded), where it cannot be determined whether the verdict was based upon the true or false issue.</p>