E. D. Metcalf Company v. Gilbert

• Citation: 116 P. 1017,19 Wyo. 331
• Decision Date: 24 June 1911
• Docket Number: 629
• Parties: E. D. METCALF COMPANY v. GILBERT
• Court: Wyoming Supreme Court

116 P. 1017

19 Wyo. 331

E. D. METCALF COMPANY v. GILBERT

No. 629

Supreme Court of Wyoming

June 24, 1911

ERROR to the District Court, Johnson County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

Enterline & LaFleiche, for plaintiff in error.

The plaintiff sought to recover upon an express contract for services to be performed at an agreed price. Although he alleges that the services were reasonably worth $ 100 per month, the same may be regarded as surplusage. It was therefore error to permit the plaintiff to recover upon quantum meruit. Having pleaded an express contract, the plaintiff was not entitled to recover upon an implied contract. (Doyle v. Edwards, (S. D.) 91 N.W. 322; Ecker v. Isaacs, (Minn.) 107 N.W. 1053; Tate v Torcout, (Mich.) 58 N.W. 993; Hunt v. Tuttle (Ia.) 101 N.W. 509; Duncan v. Gray, 79 N.W. 362; Walker v. Irvin, 62 N.W. 785; Wernli v. Collins, 54 N.W. 365; Pettibone v. Town Co., 66 P. 218; Fillmore City v. Roller Mill Co., (Utah) 103 P. 967; Pearson v. Switzer, (Minn.) 74 N.W. 214; Satterlund v. Beal, (N. D.) 95 N.W. 518; Black on Judgments, Sec. 183; Frevert v. Henry, 14 Nev. 191; Bachman v. Sepulveda, 39 Cal. 688; Marshman v. Conklin, 21 N. J. Eq., 546; Clemens v. Helehan, (Neb.) 72 N.W. 270; Dorrington v. Powell, (Neb.) 72 N.W. 587; 8 Ency. Pl. & Pr. 945; Johnson v. Hosford, 110 Ind. 572.) The plaintiff utterly failed to establish the alleged express contract, because it was specifically alleged that he entered the employ of the defendant at the agreed price of $ 100 per month, and the court found against him on that proposition by allowing him only the sum of $ 50 per month. There was, however, no evidence from which the court could properly have ascertained that the plaintiff was entitled to such sum; and, therefore, assuming that a recovery might be had upon a quantum meruit, the case should be reversed for insufficient evidence to sustain the finding as to value of plaintiff's services. (Enskew v. Reise, 117 N.Y.S. 906; Moyle v. Hocking, 51 P. 552.) It is apparent that the plaintiff went to work in defendant's store for the purpose of acquainting himself with the clothing business at Buffalo, and with the ultimate object of opening up a store for himself in that city. It is evident that he had no intention of buying an interest in defendant's business. His conduct in that respect was reprehensible, and there is no reason under the evidence for allowing him to recover anything for his services.

Metz & Sackett and Alvin T. Clark, for defendant in error.

The judgment on a quantum meruit was not outside of the pleadings. The better authority is that where a petition declares upon an express contract, evidence may be received to show the reasonable value of the services, and recovery may be had therefor. (Sussdorf v. Schmidt, 59 N.Y. 319; Burgess v. Helm, (Nev.) 51 P. 1025; Ry. Co. v. Gaffney, 65 O. St. 104; R. Co. v. Pollock, 16 Wyo. 321; Usher v. Hiatt, 18 Kan. 195; Irby v. Phillips, 40 Wash. 618, 82 P. 931; Noyes C. Co. v. Robbins, (Ind. App.) 67 N.E. 959; Palmer v. Miller, 49 N.E. 975; Ehlers v. Wannack, 118 Cal. 310, 50 P. 433; Antonelle v. Lumber Co., 140 Cal. 309, 73 P. 966; L. & M. Co. v. Hege, 119 Cal. 376, 51 P. 555; Griffith v. Ridpath, 38 Wash. 450, 80 P. 820; Lemke v. Deagling, (Wis.) 9 N.W. 399; Hightower v. Kitchens, 118 Ga. 277, 45 S.E. 267; Beers v. Hiatt, 18 Kan. 195, 64 F. 712.) The petition states facts sufficient to authorize a judgment for the value of the services, whether there was an agreed price or not. (Usher v. Hiatt, 18 Kan. 195; Beers v. Kuehn, (Wis.) 54 N.W. 109.) No motion was made to strike out any portion of the petition, to make it more definite and certain, or to separately state and number the causes of action, and there is no claim that the defendant was surprised by proof of the reasonable value of the services.

It is not the law that an action upon an express contract and one on an implied contract cannot be joined because inconsistent, and if so joined, that the plaintiff would be required to elect between such causes of action. (Willard v. Carrigan, (Ariz.) 68 P. 538; Wilson v. Smith, 61 Cal. 209; Londregon v. Crowley, 12 Conn. 558; Heminger v. West. Assur. Co., 95 Mich. 355; Moore v. Mfg. Co., 113 Mo. 98; Longprey v. Yates, 31 Hun, 432; McDowell v. Oyer, 21 Pa. St. 417; Loftus v. King, 23 Tex. Civ. App. 36; Sucke v. Hutchinson, 97 Wis. 373; Murphy v. Quigley, 21 O. C. C. 313; Gray v. Bass, 42 Ga. 270; School Dist. v. Boyer, 46 Kan. 54; Squire v. Brew. Co., 90 Mo.App. 462; Tucker v. Virginia City, 4 Nev. 20; Copeland v. Mfg. Co., 3 N.Y.S. 42; Fant v. Andrews, 46 S.W. 909; Krester v. Cary, 52 Wis. 374, 9 N.W. 161; Rucker v. Hall, 103 Cal. 425, 38 P. 962.)

POTTER, JUSTICE. BEARD, C. J., concurs. SCOTT, J., did not sit.

OPINION

POTTER, JUSTICE.

This action was brought by I. E. Gilbert against the E. D. Metcalf Company, a corporation, engaged in the mercantile business and conducting a general store in the City of Buffalo, in this state. The material allegations of the petition are as follows:

"That on or about the 6th day of April, 1908, said defendant employed the plaintiff herein to render services for said defendant company and in and about said store, as manager and salesman, at the agreed price for such services at $ 100 per month, and that said plaintiff did, in pursuance of such contract and agreement so made and entered into by and between said plaintiff and defendant, on the 6th day of April, 1908, enter into and commence such services, and did, as such manager and salesman, continue in such service and for said defendant, from the said 6th day of April, 1908, to the 21st day of May, 1908, inclusive, and from the 19th day of June, 1908, to the 14th day of November, 1908, inclusive, and from the 23rd day of November, 1908, to and including the 30th day of November, 1908, thereby rendering services for said defendant as aforesaid, for the period of six months and twenty days, and at the agreed price of $ 100 per month, and which services were reasonably worth $ 100 per month, and amounting in all to the sum of six hundred sixty-six dollars and sixty-seven cents ($ 666.67), no part of which has been paid or satisfied, save and except the sum of one hundred fifty-eight and 32/100 dollars. * * * And that by reason of the premises there is still due and owing and payable to this plaintiff from said defendant and for said services, the sum of five hundred eight and 35/100 dollars, with interest thereon at eight per cent. per annum from February 15th, 1909." There is a prayer for judgment for the amount so alleged to be due.

The answer denies generally the allegations of the petition above quoted; and for a separate defense alleges that the plaintiff entered the store of defendant for the purpose of familiarizing himself with the defendant's business, and solely for his own benefit, pursuant to an oral agreement for the purchase by plaintiff of an interest in said business, which agreement he failed and refused to perform. By way of counterclaim the facts of said agreement and the failure of the plaintiff to perform the same are alleged, and also certain acts of plaintiff while employed in defendant's store injurious to the defendant, and a judgment against the plaintiff on account thereof is demanded in the sum of twelve hundred dollars. A reply was filed admitting that an oral agreement was made between the plaintiff and defendant for the sale to and purchase by the plaintiff of an interest amounting to many thousand dollars in the stock of goods of the defendant, and alleging that plaintiff was at all times ready and willing to comply with the terms of said agreement, but that the defendant wholly failed to keep and perform the same, and failed and refused to deliver to plaintiff the goods aforesaid so agreed to be sold and delivered and has never delivered any part thereof to plaintiff. The reply denies all the other allegations of new matter in the answer. It is also separately alleged in the reply that the agreement alleged in the counterclaim was for the purchase and sale of goods, wares and merchandise to the value of $ 12,500; that no part thereof was ever delivered to or received or accepted by the plaintiff, and that said contract nor any memorandum thereof was ever reduced to writing or signed by either plaintiff or defendant, and the same is null and void.

Upon a trial without a jury the following findings were made:

"1. That the allegations of the plaintiff's petition have been sustained by the evidence in so far as to entitle the plaintiff to recover upon a quantum meruit for services rendered to said defendant for the time stated in said petition; and the court further finds that such services were reasonably worth the sum of $ 50.00 per month, and that the time in which the plaintiff was in the employ of the said defendant was six months and twenty days; that such services in the aggregate are reasonably worth the sum of $ 333.32, for which the defendant is entitled to a credit of $ 158.32, leaving a balance due the said plaintiff in the sum of $ 175.00, for which balance due the plaintiff is entitled to recover judgment with costs of suit. 2. The court further finds that the allegations contained in the counterclaim of said defendant have not been sustained by the evidence."

Thereupon judgment was rendered in favor of the plaintiff for $ 175 and costs, and the counterclaim of the defendant was dismissed. A motion for new trial was duly filed by the defendant and overruled, and the cause is here on error.

The evidence discloses that the oral agreement referred to in the pleadings relative to the purchase by the plaintiff of an interest in the business of defendant...