
    H. HERFURTH, JR., INC. v. THE UNITED STATES
    [No. 43338.
    Decided June 7, 1937]
    
      Messrs. Eseh, Kerr, Taylor & Shipe for the plaintiff. Mr. Henry P. Thomas was on the brief,
    
      Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General James W. Morris, for the defendant.
   MEMORANDUM ON DEMURRER

The plaintiff seeks to recover in this case for work performed for the use of the United States under the direction of its agents and accepted by them.

The petition recites in substance that one Stetson submitted a proposal to perform certain work for the defendant which proposal was accepted but by reason of the failure of Stetson to file a bond required by the defendant, no contract was ever entered into with him. In the meantime, however, Stetson awarded part of the work to the plaintiff at a fixed price. The plaintiff proceeded with the work under the direction of defendant’s agents and so far as it went, to their satisfaction, until it was informed that no contract between defendant and Stetson had been completed and that the contract would be relet. Thereupon, plaintiff was requested by defendant’s agent to furnish a statement of the cost of the work done, which amounted to $921.25 and which the defendant’s representative agreed to be reasonable.

It is further alleged that defendant proceeded to relet the contract and in so doing made use of the work performed by plaintiff and had the project completed at a lower price by reason thereof, but now refuses to pay the plaintiff anything for the work which it performed.

The defendant demurs to the petition on the ground that it fails to show any contract, express or implied, with plaintiff on the part of the defendant.

As the petition is now drawn, the demurrer will have to be sustained. If the plaintiff recovers at all, it must recover on a quantum meruit, or quantum valebat, but there is no allegation in the petition that the work done was reasonably worth the amount claimed or any other sum and no direct allegation that the work of plaintiff was accepted and made use of by the defendant. An order will be entered sustaining the demurrer with leave to the plaintiff to amend its petition. 
      
       Note: On June 15, 1937, plaintiff filed an amended petition.
     