Cleveland & Williams v. Butler

• Decision Date: 30 April 1913
• Parties: CLEVELAND & WILLIAMS v. BUTLER.
• Court: South Carolina Supreme Court

78 S.E. 81

94 S.C. 406

CLEVELAND & WILLIAMS v. BUTLER.

Supreme Court of South Carolina

April 30, 1913

Appeal from Common Pleas Circuit Court of Greenville County; R. W Memminger, Judge.

"To be officially reported."

Action by Cleveland & Williams against P. S. Butler. From a judgment for plaintiff, defendant appeals. Affirmed.

McCullough Martin & Blythe, of Greenville, for appellant. J. R. Martin of Greenville, for respondent.

WOODS J.

The plaintiffs, real estate brokers, recovered a judgment against the defendant for services performed in effecting for him an exchange of certain lots in the suburbs of the city of Greenville known as "Donwood" for a peach farm in Georgia. There are a number of exceptions, but the appeal turns on two positions taken by defendant's counsel: First, that the complaint states a cause of action on an express contract exclusively, and that the plaintiff having, in the course of the trial, announced his abandonment of that cause of action, he could not recover on a quantum meruit; second, that there was no testimony supporting any cause of action either on an express contract or a quantum meruit.

The general rule is well established that a suit on an express contract does not admit of recovery on a quantum meruit. King v. Western Union Telegraph Company, 84 S.C. 73 65 S.E. 944. But the rule is not applicable to this case. After alleging the agreement by defendant to pay $500 for the services, and the performance of the services by the plaintiff, the complaint concluded: "Defendant P. S. Butler, assisted and aided by plaintiff as aforesaid, exchanged the above-named 'Donwood' property with the said parties for the Georgia lands and plaintiff in compliance with said contract and as a reward for its services became entitled to its commission of five hundred ($500) dollars. That demand has been made upon the defendant herein for the five hundred ($500) dollars for its services rendered as aforesaid, but the defendant has refused, and still refuses, to pay said $500 or any amount thereof, and the same is justly due and owing to plaintiff, the services rendered being reasonably worth the commission agreed upon and claimed."

The circumstances of the abandonment of the cause of action on the express contract is shown by the following extract from the record:

"Q. How long had you worked on this deal? (Objected to by Mr. Blythe: This is a suit upon a specific contract, alleging that the contract was to do a certain thing for a certain amount of money, and the question is has the contract been complied with.)

"Court: That wouldn't be relevant on the contract. You have to stand or fall by one or the other. If you want to stand on the contract, you can't introduce testimony as to the value of the work. If you abandon the contract, then you can introduce that testimony. We had the same case up at Walhalla last week about trying to get in on both grounds.

"By Mr. Martin: May it please the court, we will stand on the quantum meruit proceeding and abandon the contract. If it is the ruling of the court, we will sue on the quantum meruit. Q. You can state that now?

"By Mr. Blythe: I want to add

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