Crump v. Rebstock

• Decision Date: 08 December 1885
• Citation: 20 Mo.App. 37
• Parties: J. R. CRUMP, Respondent, v. C. REBSTOCK, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 37

J. R. CRUMP, Respondent,

v.C. REBSTOCK, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge,

Affirmed.BROADHEAD & HAEUSSLER, for the appellant: There having been an express contract as to both the nature of the services and the price to be paid, it necessarily results that quantum meruit can not be maintained. In all such instances the action must be on the express contract. Andre v. Hardin, 32 Mich. 324; Friermuth v. Friermuth, 46 Cal. 42; Moore v. Nason, 48 Mich. 300; Walker v. Bietry, 24 La. Ann. 349; Bull v. St. Johns, 39 Ga. 78; Provost v. Carlin, 28 La. Ann. 595; Gill v. Vogler, 52 Md. 663; Wilder v. Colby, 134 Mass. 377; Van Fleet v. Van Fleet, 50 Mich. 1; Stout v. Tribune Co., 52 Mo. 342.

EDGAR FLEMING, and T. J. ROWE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action for the reasonable value of certain services as a traveling salesman, alleged to have been performed by the plaintiff for the defendant at his special instance and request. The answer is a traverse of the allegations of the petition and a counter-claim for money paid and merchandise delivered by the defendant to the plaintiff, and for money collected by the plaintiff for the defendant and not paid over, according to an itemized account, which is exhibited. A reply denied the new matter. There was a verdict and judgment for the plaintiff in the sum of $134.23.

At the trial the plaintiff gave evidence to the effect that he was employed as a traveling salesman for the defendant between certain dates, and that the reasonable value of his services was one hundred and fifty dollars per month and expenses. He testified that this was a fair price, and the price usually paid for such services. In his subsequent testimony it appeared that he was employed by the defendant under a distinct contract at a stated compensation. The defendant's testimony also showed that the plaintiff was employed by him at a stated and agreed compensation. The only controversy between the parties was as to what that compensation was. The plaintiff testified that it was one hundred and fifty dollars per month and expenses merely; the defendant's testimony, supported by that of his book-keeper, was to the effect that the plaintiff was to have one hundred and fifty dollars per month and expenses in the event of his being able to effect sales of goods to the extent of $35,000 per annum; that if his sales exceeded this aggregate he was to have proportionately more per month and if they fell below this aggregate, he was to have proportionately less.

The defendant, by objections to evidence and by requests for instructions, raised the question whether a party who brings an action for the reasonable value of services can recover by proving a special contract to pay for the services at a certain rate. The court ruled that under a petition so framed the plaintiff can prove the contract price for the services and recover the reasonable value of the services, not exceeding the contract price. The ruling of the circuit court was in conformity with the law as laid down in Mansur v. Botts (80 Mo. 651.)

Notwithstanding the rule laid down by the supreme court and very stringently applied in other cases, to the effect that a party can not sue upon one cause of action and recover upon another, we are bound to follow this decision as a recent exposition of the supreme court upon the precise point here in question. We followed it in the case of Fox v. Pullman Palace Car Co. (16 Mo. App. 122), although all the members of the court had previously thought that the rule was different; and I there took the liberty of saying in substance that the spirit of the code requires a party to state his cause of action as it really exists and to prove it as stated. With entire respect for the conclusion of my judicial superiors in the case of Mansur v. Botts, supra, I take leave to say that I remain firmly of the same opinion, viewing the question as one of principle, and I do not want the bar to think that I ever had any doubt upon such a question.

This case is a strong illustration of the impropriety of the rule laid down in Mansur v. Botts. Here, the plaintiff, a discharged employe, claiming an unpaid balance from his employers on account of wages, and knowing that the only dispute between him and them is as to the rate of wages at which he was employed, instead of bringing an action upon the contract as he claims it to be, brings it upon a quantum meruit. This enables him to get...