Kilian v. Better Boxes

• Decision Date: 03 April 1956
• Docket Number: No. 1762.,1762.
• Citation: 121 A.2d 726
• Parties: James A. KILIAN, Appellant, v. BETTER BOXES, Inc., a corporation, Appellee.
• Court: D.C. Court of Appeals

121 A.2d 726

James A. KILIAN, Appellant, v. BETTER BOXES, Inc., a corporation, Appellee.

No. 1762.

Municipal Court of Appeals for the District of Columbia.

Argued March 12, 1956.

Decided April 3, 1956.

John T. Reges, Washington, D. C., for appellant.

Harry A. Calevas, Washington, D. C., with whom Nicholas Jay Chase, Washington, D. C., was on the brief, for appellee.

Before HOOD, Acting Chief Judge, QUINN, Associate. Judge, and CAYTON (Chief Judge, Retired), sitting by designation under Code, § 11-776(b)

CAYTON, Acting Associate Judge.

Appeal by plaintiff from a judgment entered on a jury verdict denying his claim for compensation as manager of a box factory.

In his complaint plaintiff alleged that defendant had agreed to pay him 5% of gross sales, that during his employment gross sales amounted to $84,000, and that after giving credit for certain advances there was a balance of $3,000 due him. In an amended complaint he pitched his claim in the alternative on a quantum meruit basis.

Defendant agreed that plaintiff's compensation was to be 5% of gross sales, but contended that such was on a "profit sharing basis" and plaintiff was to receive such amount only if "he was able to operate the defendant's business so as to show a profit from which the said 5% would be paid." (Defendant also filed two counterclaims, one of which was decided favorably to plaintiff. The other is not involved on this appeal.)

Our only question is whether plaintiff was entitled to rely on his quantum meruit theory. The trial judge ruled that he was not and thereby confined him to proving his case on a percentage basis. Though it usually is sounder procedure not to make such rulings in advance of trial, it is quite clear that plaintiff was not prejudiced by the ruling in this case. The record discloses no basis for a quantum meruit claim and that plaintiff could not have prevailed on such a theory.

The term quantum meruit defines a situation where one employs another to perform services without agreement as to the amount of compensation. Colyer v. Lahontan Mines. Co., 54 Nev. 358, 20 P.2d 654. It has been said that the term refers to a class of obligations which are not truly contractual but are dictated by reason and justice. Carpenter v. Josey Oil Co., 8 Cir., 26 F.2d 442. The rule seems to be that where there is an express contract fixing the amount of salary, recovery should not De allowed on the quantum meruit theory which is based not on an express agreement but on one implied in law. See, Federal Royalty Co. v. Knox, 5 Cir., 114 F:2d 78; Brown v. Wrightsman, 175 Okl. 189, 51 Pd 761.

In the case before us it is plain from the entire record including the pleadings and pretrial proceedings that there was no dispute as to how much plaintiff should be paid. Plaintiff said he was promised 5% of gross sales, while defendant's witnesses said he was to receive such 5% only out of profits realized. (The uncontradicted evidence was that under plaintiff's management the business showed no profit.) No one said that any other or different compensation was ever agreed on. Thus there was no issue or dispute as to the amount of plaintiff's compensation. The only dispute was whether it was to be based on a straight 5% of gross sales or 5% payable only out of profits.

It may also be noted that there was no claim that any breach or other conduct of defendant rendered inoperative the 5% agreement so as to bring the quantum meruit theory into the case.¹

Under the circumstances...