
    Thomas L. Campbell v. Frank Brosius.
    Filed April 26, 1893.
    No. 5108.
    Assumpsit: Quantum Meruit: Pleadinq: Prooe: Instructions. Allegations of value in a pleading are not to be taken as true by a failure to deny them; and in all eases founded upon a quantum meruit, where the value of the services is not expressly admitted, the question of value is in issue and must be proved, and submitted to the jury.
    Error from the district court of Cass county. Tried below before Chapman, J.
    
      Byron Clark, for plaintiff in error.
    
      Beeson & Root, contra.
    
   Irvine, C.

This action was brought by the defendant in error against the plaintiff in error to recover upon a quantum, meruit for digging two wells for the plaintiff in error. The petition alleged that the reasonable value of digging the first, well was $75, and of the second $35. The answer did not deny these allegations of value, and the only evidence in any way relating to the value of the work is found in the testimony of the defendant in error, where he states that a fair compensation for the first well would be seventy-five cents a foot, the well being 100 feet deep. The evidence shows that this well was dug with a spade, while the second was bored with a machine, and there is no testimony at all as to the value of the work on the second well. The court instructed the jury, stating the elements necessary for them to find in order to return a verdict for the plaintiif, and that, if they so found, their verdict should be for the sum of $110, less what they might find plaintiif had received or had damaged the defendant in and about the work — there being a counter-claim for damages, and a plea of payment.

Section 134 of the Code of Civil Procedure provides that allegations of value or of amount of damage shall not be considered as true by failure to controvert them. It therefore became necessary for the plaintiif, notwithstanding the answer contained no denial of his allegations as to the value of the work performed, to prove the reasonable value thereof. And it was error for the court to instruct, the jury that they should assume the amount alleged as the value of the work.

The plaintiif in error contends that the court erred in several other particulars. In view of the conclusion above stated-it is not now necessary to pass upon the other assignments of error; but as the case must be remanded for a new trial, it is proper to say that upon the principal questions in dispute in the case the rulings of the trial court were substantially correct.

Reversed and remanded.

The other commissioners concur.  