concurring in part, dissenting in part.
I concur with the majority in affirming the award of damages to purchaser for return of the earnest money deposit and in affirming the judgment for purchaser on seller and developer’s counterclaim. I respectfully dissent from the portion of the majority opinion which reverses the award of damages to purchaser for improvements to the condominium which seller and purchaser agreed would be made and for which purchaser made payments direct to third parties. I note the basis for the majority’s reversal was not asserted in the trial court nor raised or briefed on appeal by the appellant.
The majority states the only theory upon which recovery was sought was one of breach of contract. I disagree.
Plaintiffs Second Amended Petition alleges the following:
5. During the course of said contract, the Plaintiff, with the agreement of the Defendant, upgraded the improvements to said condominium increasing the sale price to One Hundred Forty-Two Thousand Two Hundred Seventy-Three Dollars ($142,-173.00). Further the parties agreed that Plaintiff would contract directly with third-party suppliers and contractors for certain improvements to the above-referenced condominium to whom Plaintiff paid a total sum of Four Thousand Four Hundred One Dollars and Fifty-Two Cents ($4,401.52)....
12. Despite the demands of Plaintiff, Defendant has failed or refused to return to Plaintiff her earnest money deposit in the sum of Six Thousand Dollars ($6,000.00) and reimburse to Plaintiff her costs and expenses incurred in making improvements to said condominium totalling Four Thousand Four Hundred One Dollars and Fifty-Two Cents ($4,401.52).
13. Defendant’s actions as above described constitute a substantial and material breach of the parties’ agreement, and as a direct consequence thereof, Plaintiff has sustained damages in the sum of Ten Thousand Four Hundred One Dollars and Fifty-Two Cents ($10,401.52)_ (emphasis added).
To recover for quantum meruit, the plaintiff must prove that it provided defendant materials or services at defendant’s request or acquiescence, that the materials or services had certain value, and that defendant failed to pay the reasonable value of those materials or services upon request of the plaintiff. First Place v. Douglas Toyota III, 801 S.W.2d 721, 724 (Mo.App.1990).
Rule 55.33(b) states:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Upon a thorough review of the record, I believe the issue of restitution was properly tried. Plaintiffs petition, while less than artfully pleaded, adequately notified defendant that restitution damages were sought. Purchaser testified that after signing the contract, she and Mr. Bruce later agreed to the “upgrades” and “amenities” which purchaser paid for directly. The transcript indicates receipts for these items were admitted into evidence. Purchaser further testified that she did not receive back any portion of the money she spent for these items which went into seller’s condominium. Purchaser asked the trial court for judgment for the amounts which she had expended for these “improvements.” It is a reasonable inference that the trial court’s award of $4,401.52 is the reasonable value of those improvements. I believe the record contains substantial evidence to support the trial court’s award to purchaser for the amounts purchaser paid for improvements to seller’s property.
I would affirm the judgment of the trial court in all respects.