Brown v. Beck, 5044

• Citation: 202 P.2d 528,68 Ariz. 139
• Decision Date: 09 February 1949
• Docket Number: 5044
• Parties: BROWN v. BECK
• Court: Arizona Supreme Court

202 P.2d 528

68 Ariz. 139

BROWN v. BECK

No. 5044

Supreme Court of Arizona

February 9, 1949

Rehearing Denied March 10, 1949.

Appeal from Superior Court, Maricopa County; W. C. Truman, Judge.

See also 64 Ariz. 299, 169 P.2d 855.

Judgment in first four causes of action reversed and remanded for new trial, and judgment as to second cause of action reversed with directions.

Claude E. Spriggs, of Phoenix, for appellant.

Baker &amp Whitney and George M. Sterling, all of Phoenix, for appellee.

Stanford Justice. LaPrade, C. J., and Udall, Phelps, and De Concini, JJ., concur.

OPINION

Stanford, Justice.

In the trial court Beck sued Brown. Herein we will style Beck (appellee) as plaintiff, and Brown (appellant)as defendant.

Action was brought on seven causes of action. The fifth and sixth causes of action were dismissed by the court on plaintiff Beck's motion at the close of his case.

The first cause of action according to the complaint was upon an implied contract for the payment of the sum of $ 3100 for work, labor and services performed by plaintiff for defendant on a quantum meruit basis, no dates being set forth for the commencement or completion of the work. Plaintiff claims the second, third and fourth causes of action were for damages for conversion of certain personal property of the value of $ 600, $ 700 and $ 560, respectively. Plaintiff claimed by his seventh cause of action that the sum of $ 1200 was due him from defendant for building and equipment sold by him to defendant.

Defendant Brown answered and counterclaimed against plaintiff as to the first cause of action alleging that plaintiff went to work for him on the 3rd day of September, 1944, to discharge an indebtedness due him from plaintiff in the sum of $ 2180.55, and by reason of plaintiff's labor he earned $ 937.50 for services rendered until the 10th day of March, 1945. After defendant deducted social security payments and income tax withheld in the sum of $ 235.63 a balance of $ 701.87 was left earned by plaintiff toward the reduction of the indebtedness owed by him to defendant. Defendant claimed also to have advanced money and paid debts for plaintiff in the further sum of $ 730.75; that defendant salvaged certain property turned over to him by plaintiff valued at $ 785, and after allowing credit for salvage alleged the sum of $ 1424.43 is due defendant by plaintiff.

On the second cause of action defendant claimed moneys were due him for storing building material for plaintiff in defendant's building in Deming, New Mexico; that the trucks of defendant were used in effecting such storage; that said building materials so stored were worth not to exceed $ 200; that for use of trucks belonging to defendant plaintiff owes drayage in the sum of $ 25; that for such storage plaintiff owed defendant the sum of $ 240, or $ 265 in all.

On the third cause of action defendant generally denied the indebtedness, but claimed that in August, 1944, plaintiff transported to Clifton, Arizona, from Deming, New Mexico, and to Safford, Arizona from Deming, New Mexico, certain personal property including sundry auto parts which defendant believes to be of the value of $ 200; that said auto parts have been in storage in Clifton and Safford in properties belonging to defendant and that a reasonable storage value is $ 40 per month, totaling $ 480; that the truckage of said auto parts amounted to the sum of $ 155, and that there is a total of $ 635 due this defendant on this counterclaim.

As to the fourth cause of action defendant denies the indebtedness of $ 560 or any sum and alleges that in August, 1944, plaintiff left certain tools and equipment for storage with defendant. The defendant believes the value of said property to be $ 100; that a reasonable value for storage for a period of twelve months on such tools is $ 240.

Respecting the seventh cause of action defendant denies the indebtedness of $ 1200 and as a further defense states "* * * that said alleged transfer or sale by plaintiff to defendant as set forth in said seventh cause of action is void for the reason that it is in violation of the Statute of Frauds, to-wit, Subdivision 4 of Section 58-101, A.C.A.1939."

The verdicts of the jury were rendered in favor of the plaintiff on the first cause of action in the amount of $ 3100; on the second cause of action for the sum of $ 400 and for the defendant on his counterclaim in the sum of $ 25; on the third cause of action for the sum of $ 500 and for the defendant on his counterclaim in the sum of $ 155; on the fourth cause of action for the sum of $ 500; and, on the seventh cause of action the sum of $ 1200, the amount prayed for by the plaintiff.

Appeal was taken by the defendant from the judgment entered by the trial court on the verdicts rendered and from the orders of the court denying defendant's motions for judgment notwithstanding the verdicts and for a new trial.

Plaintiff's first cause of action for the sum of $ 3100 was, as stated, upon an implied contract based upon quantum meruit. The plaintiff testified that there was a written contract on the subject of the employment, but the terms of that contract were never established, neither was the contract produced nor properly accounted for and there is no evidence as to the value of services rendered by plaintiff Beck on the quantum meruit theory, but apparently the verdict was based on the written contract which was not in evidence. The time worked at $ 50 a week, which was the amount per week to be paid by the written contract, amounted to approximately $ 3100, the verdict rendered by the jury on the first cause of action.

The law is that one cannot declare on an express contract and recover on quantum meruit. In other words, plaintiff Beck failed to prove the written contract, yet the jury found its verdict on same.

12 Am.Jur., Contracts, Sec. 7, p. 505 states:

"* * * No agreement can be implied where there is an express one existing."

We are satisfied that as to count one of plaintiff Beck's that the proof submitted did not conform with the pleadings. Moreover, the jury's verdict on this first cause of action that the defendant was not entitled to anything on his counterclaim is difficult to understand or reconcile with Beck's admission at the trial that he owed Brown a substantial sum for moneys theretofore advanced to him.

On plaintiff's second, third and fourth causes of action the prayer asks for the recovery of the possession of the personal property involved or for the value thereof in the sums heretofore set forth in case delivery could not be had. The verdicts in all three of these causes of action were for the value of the property as the jury found the amount to be. In the second and third causes of action the jury verdict at the same time found for the defendant on his counterclaim in the sum of $ 25 and $ 155 respectively.

Where the return of personal property is sought or a judgment for its value in case delivery cannot be had is prayed for, a judgment of the court for the value of the property alone does not conform to the pleadings. Brown's testimony further shows that at the time of the trial all of the property referred to in the...