Plaintiff's petition is copied in full in our original opinion. The prayer consists of four (4) separate parts as regards the relief sought, viz.:
First — Specific performance of alleged verbal agreement to sell real estate.
Second — Alternatively, damages for the breach of said alleged contract.
Third — Alternatively, value of services rendered in supervising the construction of improvements on the lots involved in said alleged contract to sell.
Fourth — The cost price of five (5) oscillating fans furnished by plaintiff and installed in the building on said lots.
A plea of res judicata was interposed against plaintiff's demands in toto. It was sustained by the lower court only in so far as it was directed against the action to enforce specific performance of the alleged contract. This court, as appears from its original opinion, amended the lower court's judgment on the plea of res judicata by enlarging its scope so as to embrace all elements of plaintiff's demand, save that for the value of the fans. Our attention in this connection has been since directed to the minute entry in suit No. 55,925, on the docket of the lower court, above referred to, wherein a motion to strike from the reconventional demand, set up therein by the present plaintiff, was sustained only as against the alternative money demands therein asserted, to-wit: demand for $22,000 damages for breach of contract and the $1,500 claimed as value of services for supervising the construction of the improvements. *Page 508 These claims were eliminated by this ruling from the case but are again sued for. We inadvertently overlooked the above mentioned action of the court on the motion to strike in suit No. 55,925. Neither counsel directed our attention to it until after rendition of our first opinion herein.
Appellee, in lower court, also filed exceptions of no cause and no right of action. These were overruled and are urged here. By answer to the appeal, appellee again asks that his plea of res judicata be sustained as to all elements of appellant's demand. In so far as relates to the alternative demand for damages alleged to have resulted from the breach of contract, the exceptions of no right and no cause of action are manifestly well founded.
It is a correct rule, well established in our jurisprudence, that if the existence of the contract, damages for the breach of which is sued for, may not be established for lack of that character of evidence required by law, it follows as a corollary that the impotency of such evidence applies equally to the establishment of the asserted damages. As is aptly remarked in Kaplan v. Whitworth, 116 La. 337, 346, 40 So. 723, 727, "Take away the contract, and the suit remains without foundation and falls." Bauduc v. Conrey, 10 Rob. 466, 473; Halsmith v. Castay, 17 La.Ann. 140; Kaplan v. Whitworth, supra; Lyons v. American Cigar Co., 121 La. 593, 46 So. 662; South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378.
In this connection, we might add that appellant does not now seriously urge the demand for damages for the breach of the contract.
The ruling of the lower court on the plea of res judicata is correct. The judgment in favor of plaintiff for the value of the fans is also correct. These were furnished by plaintiff and installed in the building. He has not been paid for them. This leaves for final consideration the asserted claim for supervising services.
Dr. Tilly acquired the lots described in plaintiff's petition at sheriff's sale. A large, but unfinished, apartment house was thereon at the time. Plaintiff was interested in the property prior to the sheriff's sale and desired to become the owner thereof. Before the property could be made to yield revenues, it was necessary that the apartment house be completed. It required over sixteen thousand dollars to do this. Plaintiff and defendant entered into an agreement, admitted by both, that defendant would advance the funds necessary to complete the building, and that plaintiff would let contracts therefor, buy material and in general supervise the work to completion. He did this. Some four months were consumed before the building was completed. It is further admitted that after the building was completed the entire property was to be conveyed by defendant to plaintiff for a price equal to the outstanding mortgage against it, plus the amount Dr. Tilly should advance to complete the building; payable in annual installments. The parties were at variance as to certain details of the sale and for this reason it was not consummated. Evidence to prove the above related facts was admitted solely to support the claim for supervising services. In the meantime plaintiff moved into and occupied part of the building and declined to remove therefrom on amicable demand. Said suit No. 55,925 was filed to eject him. Naturally, nothing was said about the value of plaintiff's services as supervisor of construction at their incipiency or thereafter. He felt that inasmuch as he expected to become the owner of the property when completed, for the price above mentioned, that he had a personal interest in seeing that the work was well done and at a minimum cost. The less it would cost the less he would have to pay for it. Defendant shared the same view of the matter. It is clearly established that plaintiff efficiently discharged his duties as supervisor and saved defendant many hundred dollars as a direct result of his doing so. It is also clearly shown that for such services the customary compensation is not less than ten per centum of the cost of the labor and material carried into a building. If plaintiff is entitled to recover any amount for his services on a quantum meruit, he should have judgment for the full amount he claims on this score. Surely, defendant has profited to this extent because of such services. But for them, he would have had to pay as much or more to some other overseer. It is appellee's position that the rule above discussed, as regards lack of right to recover damages flowing from breach of an oral contract to sell real property, also applies to the present claim for supervising services.
The testimony bearing thereon does not convince us that there was a wilful breach of the contract in question by either *Page 509 party thereto. The evidence of the two litigants as to why it was not consummated is diametrically at variance. We do not know which contention is correct. The fact remains that defendant was enriched to a material extent from plaintiff's time, talent and efforts. It would do violence to every rule of equity to deny a recovery by him.
"The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. * * *" Civil Code, article 1965.
We do not think that the measure of the value of the services rendered by plaintiff may be appropriately classed as damages resulting from the failure of the parties to finally consummate the sale. The two claims are easily separable. The one is not to any extent dependent upon the other for its existence or enforcement. One is for damages, allegedly arising from the fault of one party; the other claim arises from services rendered by the innocent party to the one at fault.
The claim is for services rendered which would certainly be recoverable if there had been no contract to sell. The services were rendered by and with the consent of the owner, and, in such cases, where no agreement has been reached as to compensation for the services, their value may be recovered on quantum meruit.
"Equity obliges the owner, whose business has been well managed, to comply with the engagements contracted by the manager, in his name; to indemnify the manager in all the personal engagements he has contracted; and to reimburse him all useful and necessary expenses." Civil Code, article 2299.
It will not be presumed that Dr. Tilly purposed not to compensate plaintiff for his services in the event their agreement looking to the sale of the property failed of execution for any reason.
"Where one renders services beneficial to another at his request, an implied contract is raised for remuneration. The law does not allow one person to enrich himself at the expense of another." Beall v. Van Bibber, 19 La.Ann. 434.
Since transcript in this case was lodged here, Dr. Tilly died testate. H. T. Austermell, dative testamentary executor of his succession, by motion has become a party defendant and the judgment we shall herein render will be binding on him as executor.
For the reasons herein assigned, the judgment appealed from is amended by increasing the money amount thereof to Fifteen Hundred and Eighty Dollars ($1,580), with legal interest from judicial demand, and as thus amended said judgment is affirmed with costs.