HIGBEE, C.
The respondents' brief correctly outlines the case as follows:
"Plaintiff appellant, Laura Dean, brought her suit in the Jackson county, Mo., circuit court against E. D. Bigelow and William P. Davis, executors of the estate of William N. Ewing, deceased, asking judgment for $10,920, alleging that she had been employed as a nurse, beginning in 1910, and ending in 1918, to care for Mary R. Ewing, who was the wife of William N. Ewing, and who died in 1918, the husband, William N. Ewing, having died later, in the month of April, 1922.
"Her suit was based upon a quantum meruit. She alleged that the total amount due her, based upon a reasonable value for her services, was $13,664, and that she had been paid $2,744, leaving still due $10,920.
"The defendants in their answer pleaded: That there was a special contract between William N. Ewing and plaintiff for the services which she rendered to Ewing's wife; namely, that plaintiff should receive $30 per month for her services, and that that sum was paid her in full. Further, that the checks which were given plaintiff by said Ewing in payment expressed on the face of them that they were in full of the amount due at the respective times at which they were given. That in that condition the checks were accepted and used by plaintiff, and that plaintiff is estopped from claiming any further or other payment.
"The answer pleaded also the 5-year statute of limitations.
"The reply made a specific denial of the contract for $30 per month, a specific denial that payment had been made, a specific denial that the checks had been accepted in full payment, and a specific denial of the bar of the 5-year statute of limitations.
"The case came on for trial before Hon. Willard P. Hall, Judge of the circuit court, and a jury. The plaintiff offered her testimony. She had several witnesses who testified in" part as to the character of the services she had rendered, and there was testimony also as to the value of such services. These witnesses testified also to conversations with Mr. Ewing, in which conversations they were advised that there was a special agreement between him and plaintiff as to the amount which she was to be paid for her services, which was $30 per month.
"In cross-examination of one of plaintiff's witnesses, and as part of that cross-examination, defendants had identified and gave in evidence 48 checks, showing the payment from month to month by said Ewing to plaintiff, of the sum of $30, and the recital in the face of each check that it was given in full of the amount due to date. These checks brought such payment down to the date of the death of Mary R. Ewing.
"There was some testimony to the effect that Ewing had said that he was pleased with the services of plaintiff and that he was proposing to remember her in his will.
"There was no pleading in plaintiff's petition
of a contract to make payment in addition to the sums actually paid to her, and no pleading of any agreement to compensate her by way of provisions in Ewing's will. Her petition was a plain statement of the cause of action in quantum meruit for the value of services rendered, and that only. There was no showing at all that, during the four years subsequent to Mrs. Ewing's death, during which Mr. Ewing was still alive, plaintiff had at any time made claim that she had not been paid in full for all services rendered by her.
"At the close of plaintiff's testimony the court gave a peremptory instruction in the nature of a demurrer to the evidence; whereupon the plaintiff took a nonsuit, with leave to move to set the same aside. Such motion was filed and overruled, and appeal of the case taken to this court."
Plaintiff assigns error in sustaining the demurrer to plaintiff's evidence and in refusing to permit plaintiff to testify.
It is insisted that, since the evidence shows that plaintiff nursed Mrs. Ewing at her husband's request from October 25, 1910, until the time of her death in the year 1918, that she was entitled to recover the reasonable value of such services, which was shown to be $30 per week, or $13,664, less the sum of $2,744 paid to her; the balance claimed being $10,920.
The action is upon a quantum meruit. The plaintiff admits she received $2,744 during the time she nursed Mrs. Ewing; that is, for 7 years 7 months and 14 days. This was exactly at the rate of $30 per month, which the answer avers was the contract price agreed to be paid for her services. The evidence developed that, for several years prior to and down to the time of Mrs. Ewing's death, plaintiff received a check every month from Major Ewing, which recited on its face that it was in full payment for her services to the date of the check, and that she accepted and cashed these checks without objection.
In Williams v. Chicago, S. F. & C. Ry. Co., 112 Mo. 463, 491, 20 S. W. 631, 638, 639 (34 Am. St. Rep. 403), Judge Gantt said:
"At common law, a party could sue in assumpsit to recover the stipulated price due on special contract, where the contract had been fully executed, and nothing remained to be done but the payment of the agreed price. Mansur v. Botts, 80 Mo. 651; Chesapeake & O. Canal Co. v. Knapp, 9 Pet. 565 ; Dermott v. Jones, 2 Wall. 9 . In such a case he does not repudiate the contract, nor seek to avoid it, but, under his common count of quantum meruit, he offers the contract in evidence to sustain his case, and his proof of compliance with its terms."
Again, on page 494 (20 S. W. 639):
"Having held that plaintiffs under the allegations of their petition could show the amount and value of their labor not exceeding the contract price, the question necessarily arises, What effect is to be given the contract in such a case? We answer that the contract must still control. It fixes the prices and in certain cases the classification, and provides the engineer shall determine the others. While parties have been allowed to sue in assumpsit where there was a special contract, this court has invariably ruled that the contractor cannot recover beyond the contract price, less the damages, if any, occasioned by his failure to fully comply with his contract."
See, also, Ruemmeli-Dawley Mfg. Co. v. May Department Stores Co. (Mo. App.) 231 S. W. 1031, 1032; Bergman v. Service Caster & Truck Co. (Mo. App.) 249 S. W. 973; Klein v. Terminal R. Ass'n (Mo. App.) 268 S. W. 660 (2); Sprague v. Sea, Adm'r, 152 Mo. 327, 332, 53 S. W. 1074; Ryans v. Hospes, 167 Mo. 342, 357, 67 S. W. 285; and Lillard v. Wilson, 178 Mo. 145, 153, 77 S. W. 74.
While counsel for...
