
    Meissner v. Brennan.
    
      (Superior Court of Buffalo, General Term.
    
    July 16, 1891.)
    .Pleading—Complaint—Pacts Constituting Cause oe Action.
    Under Code Civil Proo. N. § 481, which provides that the complaint shall state the facts constituting the cause of action, a complaint which alleges that plaintiff performed certain work for defendant under a contract by which defendant agreed to pay plaintiff $740.55 therefor, and that the work so performed was reasonably worth $740.55, states a cause of action, not on a quantum meruit, but on a contract to pay an agreed sum for the work; and the averment in the complaint that the work was reasonably worth $740.55 is immaterial, and need not be denied, in order to entitle defendant to prove a counter-claim set up in his answer for a breach of the contract by plaintiff in not doing the work properly, whereby defendant was damaged in a certain sum.
    Appeal from special term.
    Action by Henry J. Meissner against Michael B. Brennan. From an order granting a new trial plaintiff appeals.
    Argued before Beckwith, C. J., and Hatch, J.
    
      George Wing, for appellant. Wm. L. Jones, for respondent.
   Beckwith, C. J.

The complaint is that “the plaintiff, at the special instance and request of the defendant, performed a large amount of labor for the defendant as a plumber and gas-fitter; and, also at the request of the defendant, this plaintiff furnished a large quantity of plumber’s materials, which he used in said work for the defendant, and that the defendant contracted and agreed to pay the plaintiff for such labor and material the sum of seven hundred and forty dollars and fifty-five cents; and that said labor,together with materials so furnished to the defendant by the plaintiff, were reasonably worth the sum of seven hundred and forty dollars and fifty-five -cents.” The defendant, in his answer, while admitting the émployment of the plaintiff as a plumber, as set forth in the complaint, set up as a counterclaim a breach of his agreement by the plaintiff in not doing his work in a workman-like manner, and not completing his undertaking in every particular, and in not furnishing good and suitable materials, according to his agreement, to the defendant’s damage of $200. There was no general or specific denial of the allegations of the complaint, and accordingly no denial of the plaintiff’s allegation that the work and materials “were reasonably worth $740.55,” On the trial, because, as it would seem, the allegation of value was not denied, proof in support of the defendant’s counter-claim was excluded; but after verdict, on motion made upon the minutes, the court granted an order for a new trial, and from that order this appeal is taken. If the complaint quoted could be regarded as simply setting forth a quantum meruit, the allegation that the work done for the defendant was worth a specified sum of money might require a denial; but the complaint alleges that for the work and materials the defendant contracted and agreed to pay the plaintiff $740.55. Although a complaint in the form of indebitatus assumpsit has been sustained, yet under the system of pleading established by the Code a party is required to state the facts constituting his cause of action. The defendant, therefore, had a right to treat the complaint as stating facts, and not implications of law, when it stated that he had contracted to pay for the work $740.55. If that price had been agreed upon as a fact, as, in that view, the complaint alleged, it was immaterial what the work was really worth, and an allegation of value was an immaterial allegation, which did not require denial. The defendant, by his answer, shows that he understood the plaintiff to allege á contract for the work and an agreement as to the price, and I think he had a right to so read the complaint. After a party has acted upon a certain construction of an ambiguous pleading, which construction it bears as well as the opposite meaning, the party framing the pleading ought not to have advantage of a construction which would defeat the opposite party. Clark v. Dillon, 97 N. Y. 370. At common law’, where the plaintiff declared that the defendant promised to pay him for his services a certain sum as an indebtedness, and also that the defendant'promised to pay him so much as he reasonably deserved, the declaration was held bad, as the two promises to pay a sum certain and to pay quantum meruit were inconsistent, and could not stand together. Hart v. Longfield, 7 Mod. 148. The allegation of value could not be material, except by treating the allegation that defendant agreed to pay the plaintiff a certain sum as an allegation of the promise implied by law to pay what work already performed upon request was reasonably worth. But, as already remarked, the Code requires that facts only shall be stated. The defendant regarded the complaint as stating that the work was contracted for at a speciiic pi ice, and the complaint fairly bears that construction; and the'defendant answered, in the way of recoupment, that he ought not to pay the full price, because the plaintiff did not fully perform his contract. It follows that the allegation of value was an immaterial allegation. The order should be affirmed. 
      
       Code Civil Proc. N. Y. § 481.
     