Straw v. Temple et al., 48 Utah 258.

contended, under the terms and stipulations of the contracts referred to in defendants' answer and which we have already discussed, did not constitute wet material for which plaintiff was entitled to recover the special rates claimed by him. Of course, in that regard the terms of the contracts which we have ruled the court erred in excluding would control in the event the jury found that those terms were adopted and made a part of the contract sued on by the plaintiff. That the defendants had the right to show what those conditions were we have already determined, and therefore we need not pursue this subject further.

The next assignment arises as follows: At the trial the plaintiff claimed that he was entitled to a large sum, to wit, $1,500, for having removed material not contemplated under his original contract entered into with the defendants. In the original contracts made by the railroad company the sides or banks of the cut plaintiff was to excavate under his contract were to be made or left vertical. He, however, insisted that in doing the work the banks "sloughed" to such an extent that it was necessary for him to remove a large amount of material not originally contemplated; that he saw the defendants about it, and that it was agreed between him and the defendants that he should receive pay as though he had in fact constructed the sides of the cut to a "one to one slope," which would be at an angle of forty-five degrees; that while he did not in fact make such a slope, yet the cut should be measured as though he had constructed the sides in that way. The defendants denied plaintiff's contention, and insisted that he was to receive pay only for vertical sides. Ordinarily the question whether plaintiff's contention should prevail or not would, as a matter of course, be one for the jury. Defendants' counsel, however, insist that the court erred in submitting that question to the jury for the reasons: (1) That there was no consideration for the alleged agreement to pay for a one to one slope; and (2) that no such an agreement was pleaded, and hence no issue of that character was presented.

The first proposition raised by counsel, under the authorities is not free from either difficulty or doubt. Of course if the making of a one to one slope, either directly or by implica

Appeal from Fourth District.

4, 5

tion, was a part of the original contract with the railroad company and the terms of that contract were adopted and made a part of plaintiff's subcontract as contended by the defendants, then the plaintiff was already bound to make such a slope, and it is elementary that a promise to pay a person for what he by the terms of his contract is already bound to do is without consideration, and therefore unenforceable either in law or equity. See 1 Page on Contracts, Section 312; 9 Cyc. 349, 350, where the doctrine is clearly stated and the cases are collated. There are, however, exceptions to the general rule just stated. While the decisions are quite harmonious with regard to the general rule, they are in conflict with regard to when the exceptions apply or modify the general rule. See 1 Page on Contracts, supra, and 9 Cyc. 352, 353, where the cases upon the exceptions are referred to. Upon the other hand, while refusing to follow the cases which have adopted the rule respecting the exceptions, some of the courts have nevertheless assumed a middle ground. The rule adopted by the latter courts is well illustrated by the Supreme Court of Minnesota in the case of King v. Duluth, M. & N. Ry. Co., 61 Minn. 482, 63 N. W. 1105, and cases there cited. In the course of the opinion the doctrine is well stated by Mr. Chief Justice Start in the following words:

"But where the party refusing to complete his contract does so by reason of some unforeseen and substantial difficulties in the performance of the contract, which were not known or anticipated by the parties when the contract was entered into, and which cast upon him an additional burden not contemplated by the parties, and the opposite party promises him extra pay or benefits if he will complete his contract, and he so promises, the promise to pay is supported by a valid consideration. In such a case the natural inference arising from the transaction, if unmodified by any equitable considerations, is rebutted, and the presumption arises that by the voluntary and mutual promises of the parties their respective rights and obligations under the original contract are waived, and those of the new or modified contract substituted for them. Cases of this character form an exception to the general rule that a promise to do that which a party is already legally bound to do is not a sufficient consideration to support a promise by the other party to the contract to give the former an additional compensation or benefit. 1 Whart. Cont., Section 500."

Straw v. Temple et al., 48 Utah 258.

It is also pointed out in the course of the opinion that in applying the doctrine each case must be considered in the light of all the surrounding facts and circumstances and the objects and purposes the parties had in view in entering into the contract, and if it appears that the party claiming additional compensation is adready bound by the contract, or that the matter by implication of law must be held to have been within the contemplation of the parties, then the general rule should be enforced. In the original contract in this case it seems clear that the parties contemplated the sides of the excavation should be vertical and not sloping. Such, it seems, was also the contract between plaintiff and the defendants. The making of the sloping sides was therefore entirely outside of the terms of the contract, and it seems could not have been within the contemplation of the parties, either express or implied. This case, therefore, is not one where a party to a contract promises to pay the other party thereto an additional compensation for doing something which the promisee was already bound to do by the terms of the contract. That fact, therefore, takes this case out of the general rule.

With regard to the second proposition it will be remembered that the plaintiff claims, and we have held, that the removing of the material constituting the slopes was not included within his original contract. He also claimed at the trial that the agreement for extra compensation for making the slopes was entered into as a distinct agree-6, 7, 8 ment and at some time after the original contract was entered into. Moreover, it appears that it was not a modification of the original contract merely, but that it was a new and independent agreement. As we have seen, plaintiff testified that he was entitled to $1,500 for removing the material in making the slopes. Plaintiff, however, said nothing about such an agreement or liability in his complaint. Nor did the defendants, either in their answer or counterclaim, refer to the matter in any way. But the plaintiff, in his reply, for the first time, referred to the one to one slope, but what was said in that connection, as a matter of pleading, constituted mere surplusage which the defendants had a right to disregard. Defendants' counsel, therefore, contend that

Appeal from Fourth District.

the court erred in submitting to the jury the question of plaintiff's right to recover for that claim. It seems to us the contention is well founded. The claim being based upon an independent promise or agreement, as it is, was just as much a separate and distinct cause of action as was the first cause of action under the contract declared on by the plaintiff or the second one for the use of the horses, wagons, etc. Neither could the plaintiff add anything to either of his causes of action in his reply. That is not the province of a reply. In this jurisdiction a reply can only be filed under the conditions pointed out by the statute, and in no event can a cause of action be either stated or enlarged in the reply. When, however, evidence is produced in support of a claim which ought to have been pleaded, and is received without objection, the party producing it may nevertheless obtain leave of court to amend his pleading to conform to the evidence and recover judgment accordingly. Where that is the case, the pleadings, after they are amended, support a judgment based upon the evidence and that is all that is necessary. Such a course was, however, not pursued in this case, and, in view of the pleadings as they stand, we think the court erred in submitting to the jury the question of whether plaintiff should recover for removing the material and making the slopes.

What we have said sufficiently covers all other assignments, including those relating to the instructions. All those assignments are covered by the same general principles we have discussed, and of course will not occur again. Moreover, the instructions were erroneous only because they were in harmony with the trial court's rulings upon the evidence which we have already passed on. All such errors will therefore necessarily be avoided upon a retrial of the case.

For the reasons stated herein, the judgment is reversed, and the case is remanded to the district court of Utah County, with directions to grant a new trial. It is further ordered that the court may make such orders with regard to amendments of the pleadings by either party as he may deem just and proper. Costs to appellants.

STRAUP, C. J., and MCCARTY, J., concur.

Berow et al. v. Shields et ux, 48 Utah 270.

BEROW et al. v. SHIELDS et ux.

No. 2866. Decided July 10, 1916 (159 Pac. 538).

1. HUSBAND AND WIFE-LIABILITY OF HUSBAND FAMILY EXPENSES. Under Comp. Laws 1907, Section 1206, providing that both husband and wife shall be liable for indebtedness for family expenses incurred by either, the question whether the indebtedness was for necessaries is immaterial if it was for legitimate and proper family expenses. (Page 274.)

2.

APPEAL AND ERROR-HARMLESS ERROR-ERRONEOUS FINDING. In an action against a husband for goods purchased by his wife, the finding that the goods furnished were not necessaries, though immaterial, held not prejudicial where the conclusions of law in favor of defendant were supported by other sufficient findings of fact. (Page 274.)

3. HUSBAND AND WIFE-LIABILITY OF ONE FOR INDEBTEDNESS OF OTHER-FAMILY EXPENSES. To make either spouse liable for goods furnished the other, the relation of husband and wife must exist, and the indebtedness must be for legitimate and proper family expenses. (Page 275.)

4. HUSBAND AND WIFE-LIABILITY OF HUSBAND-DEBTS OF WIFESEPARATION. Under Comp. Laws 1907, Section 1206, providing that husband shall be liable for debts contracted by the wife "for expenses of the family," where a husband permanently separated from his wife because of her excessive use of intoxicants, he was not liable for goods furnished her during such separation; no "family" existing. (Page 276.)

5. ESTOPPEL-PLEADING. In an action under Comp. Laws 1907, Section 1206, for goods furnished defendant's wife, plaintiff cannot recover on the ground that though the family relation had ceased to exist at the time of the sale, the defendant was estopped by his conduct to deny liability, where such estoppel was not pleaded. (Page 278.)

Appeal from District Court, Third Distriet; Hon. M. L. Ritchie, Judge.

Action by Louis Berow and another against F. A. Shields and wife.

Judgment for defendants. Plaintiffs appeal.