Hunt v. Tuttle

• Decision Date: 23 November 1904
• Citation: 101 N.W. 509,125 Iowa 676
• Parties: ENOS B. HUNT v. S. B. TUTTLE, Appellant
• Court: Iowa Supreme Court

101 N.W. 509

125 Iowa 676

ENOS B. HUNT v. S. B. TUTTLE, Appellant

Supreme Court of Iowa, Des Moines

November 23, 1904

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

This is a suit to recover for services rendered under an express contract of employment to sell real estate. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

Carr Hewitt, Parker & Wright, for appellant.

C. C. & C. L. Nourse, for appellee.

OPINION

SHERWIN, J.

The petition alleges an oral contract of employment to sell the defendant's property, without any agreement as to the plaintiff's compensation therefor, and the answer denies the employment. Evidence was introduced on the issue thus tendered, and the court instructed thereon. Another instruction was given however, as follows: "If you shall find that the plaintiff has at all times material in this action been engaged in the sale of real estate owned by others on commission; that defendant had knowledge of that fact, and also knew that plaintiff was making efforts to sell said real estate, and made no objection to his so doing, but acquiesced therein--then, and under such circumstances, the law implies a contract of employment." Under the issue tendered the instruction was erroneous. The declaration was upon an express contract of employment, and the plaintiff could not thereunder recover upon a quantum meruit. Duncan v. Gray, 108 Iowa 599, 79 N.W. 362; Walker v Irwin, 94 Iowa 448, 62 N.W. 785; Wernli v. Collins, 87 Iowa 548, 54 N.W. 365. It does not seem to us that the question here presented is one alone of variance between pleading and proof. The plaintiff selected his own ground, and chose to rely upon the express contract pleaded; and, while the evidence offered by him in support of his petition may also have tended to prove an implied contract, he was not entitled to recover on such a contract under the authorities cited. In Hunt v. Higman, 70 Iowa 406, 30 N.W. 769, relied upon by the appellee, the answer alleged an express contract that the plaintiff should take a certain note in payment of the debt sued upon. After the evidence had been offered which tended to prove this agreement, the defendant amended to conform his pleading to the proof, and withdrew his allegation of an express contract, and pleaded facts from which an agreement would be implied. This amendment was stricken, and we held,...