* BURWELL, J., having been of counsel, did not sit. The plaintiff Simpson filed a formal complaint, afterwards adopted by plaintiff Davis when made a party, on a special contract to finish a well at Rutherfordton depot for the defendant company. The second cause of action was a declaration on a quantum meruit.
The action was commenced in the name of the plaintiff J. K. Simpson, who claimed to be assignee of contract, and owned same. It was proved that said J. K. Simpson had paid the hands employed in work and advanced supplies to further same for Frank Davis, (705) *Page 472 with whom defendant company had contracted, and under an arrangement and agreement with Davis to own contract to amount advanced and until he was repaid. On motion in the Superior Court, Frank Davis, with whom the contract was made and who did the work sued for, was made party plaintiff, to which there was no exception, said Davis adopting pleadings already filed. The issues having been raised by the allegations set forth in the two causes of action (the one on the special contract and the other on the quantum meruit), with the corresponding denials (708) in the answer, the findings upon them were not inconsistent or contradictory, as counsel for the defendant contended. Though the plaintiff Davis could not recover on the special contract on account of the failure to show compliance with its terms on his own part, yet if he satisfied the jury that the defendant received and used the well without notifying him of any defect in the work until payment was demanded, or that the work previously done proved beneficial to the defendant after the well was taken charge of by its agents without objection, the plaintiff was entitled to recover, as on the common counts, for work and labor done.Byerly v. Kepley, 46 N.C. 35; Dover v. Plemmons, 32 N.C. 23.
Had the defendant notified the plaintiff that the work was not done as the company "deemed necessary to furnish an ample supply of water for their purposes," and given him an opportunity to remedy defects and complete the job with his own force instead of enlarging the well, sinking it deeper without notice to him, he could not have recovered unless he had shown that he complied with its reasonable demands. Winstead v. Reid, 44 N.C. 76. The instruction given by the judge was in accord with the principle we have announced, and embodied a clear and succinct statement of the law applicable to the second cause of action.
As all of the assignments were founded either upon the contentions that the plaintiff was not in any aspect of the evidence entitled to recover, as upon a quantum meruit, or that the court could not proceed to judgment on the verdict, we do not deem it necessary to discuss them in detail.
NO ERROR.
Cited: Dixon v. Gravely, 117 N.C. 86; Coal Co. v. Ice Co., 134 N.C. 580;Raby v. Cozad, 164 N.C. 289; McCurry v. Purgason, 170 N.C. 470. *Page 473
(709)