MJ Carroll, Inc. v. Gilmore

• Decision Date: 24 April 1939
• Docket Number: No. 4442.,4442.
• Citation: 103 F.2d 560
• Parties: M. J. CARROLL, Inc., v. GILMORE.
• Court: U.S. Court of Appeals — Fourth Circuit

103 F.2d 560 (1939)

M. J. CARROLL, Inc., v. GILMORE.

No. 4442.

Circuit Court of Appeals, Fourth Circuit.

April 24, 1939.

W. Harold Arnold, of Greenville, S. C. (A. C. Mann, of Greenville, S. C., on the brief), for appellant.

W. B. McGowan and Benj. A. Bolt, both of Greenville, S. C. (Thos. A. Wofford, of Greenville, S. C., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and HARRY E. WATKINS, District Judge.

HARRY E. WATKINS, District Judge.

This appeal is from a judgment entered upon a verdict of a jury for $2,400 in favor of Paul Gilmore, plaintiff, in the trial of an action to recover in quantum meruit for rental value of machinery and equipment used by defendant. The sole question is whether the trial court erred in overruling defendant's separate motions for nonsuit and a directed verdict.

There is little conflict in the evidence. On August 15, 1936, defendant was awarded a contract by the South Carolina state highway department to construct four concrete bridges. Subsequently, plaintiff and the defendant entered into a written contract, whereby plaintiff was to furnish most of the machinery and equipment and act as superintendent on one project known as the Greenville county project. Defendant promised to pay claimant a percentage of the profits, and in addition a salary of $250 per month. Work was commenced about September 9, 1936. Plaintiff remained in charge as superintendent until April, 1937, when he was transferred to a smaller Abbeville project being constructed by another company owned by M. J. Carroll, president of the defendant company. Before the transfer considerable friction developed between plaintiff and Schoolbred, state engineer, over mostly personal matters. There is evidence to the effect that the transfer was made temporarily to pacify Schoolbred, and that plaintiff's foreman was left in charge in the hope that the friction would be eased and plaintiff could return to the Greenville project. After plaintiff had been on the Abbeville job about two weeks he received a letter from defendant, dated April 30, informing him that another superintendent had been placed in charge of the Greenville job, effective April 27. On June 10 Carroll wrote plaintiff that his salary on the Greenville job was stopped when the new superintendent had relieved him there. No salary was paid to plaintiff on the Greenville project after April. There is evidence to the effect that at different times thereafter plaintiff wrote to defendant or talked with Carroll in an effort to get some definite understanding relative to the Greenville project; that plaintiff asked Carroll "on several occasions as to what he was going to do for the use of my equipment", and that Carroll replied that he was going "to try to work out something". No settlement was ever reached. Defendant continued to use plaintiff's equipment until the job was completed at a loss. Claiming that these circumstances amount to a breach of contract on the part of defendant, plaintiff has elected to treat the contract as abandoned and sue in quantum meruit for the use of his equipment.

Three points are urged by defendant in support of its motion for nonsuit and directed verdict. First, it says the case should have been taken away from the jury because plaintiff's remedy, if any, is in equity instead of law. We see no merit in this point. Plaintiff could elect (1) to proceed in equity for an accounting to recover profits; or (2) proceed at law to recover damages for alleged breach of contract; or (3) treat the agreement as terminated and sue at law in quantum meruit for use of his equipment. Furthermore, it appears that when the case was called for trial, counsel for defendant made specific inquiry as to the form of action. When told that it was upon quantum meruit, he raised no objection, and proceeded to trial. If the case was one of exclusive equitable cognizance, his remedy was to then move for transfer of the case from the law to the equity side of the court. Fay v. Hill, 8 Cir., 249 F. 415; Mobile Shipbuilding Co. v. Federal Bridge & Structural Co., 7 Cir., 280 F. 292.

The second ground urged by defendant for a nonsuit and directed verdict is that plaintiff is confined to his share of profits as his measure of damages. We can not agree. This action is not to recover profits, but to recover for the use of equipment upon an implied contract in quantum meruit. In such an action the measure of damages is the reasonable rental value of the equipment. If the defendant, without just cause, excluded and removed plaintiff from management or participation in the enterprise, such constituted a...