Russell v. John Clemens & Co.

• Decision Date: 11 December 1923
• Docket Number: 35328
• Citation: 195 N.W. 1009,196 Iowa 1121
• Parties: A. M. RUSSELL, Appellant, v. JOHN CLEMENS & COMPANY, Appellees
• Court: Iowa Supreme Court

195 N.W. 1009

196 Iowa 1121

A. M. RUSSELL, Appellant, v. JOHN CLEMENS & COMPANY, Appellees

No. 35328

Supreme Court of Iowa, Des Moines

December 11, 1923

Appeal from Chickasaw District Court.--H. E. TAYLOR, Judge.

ACTION at law to recover the sum of $ 1,600 alleged in plaintiff's petition to be due him from the defendants for introducing to the defendants a prospective purchaser of land. The opinion sufficiently states the pleadings and the facts. Verdict for the defendants and judgment for costs entered accordingly. Plaintiff appeals.

Affirmed.

F. J Conley and Hurd, Lenchan, Smith & O'Connor, for appellant.

M. E Geiser and M. F. Condon, for appellees.

DE GRAFF, J. PRESTON, C. J., STEVENS and VERMILION, JJ., concur.

OPINION

DE GRAFF, J.

Plaintiff seeks to recover commission or compensation for services rendered in introducing defendants, who are realtors, to a prospective purchaser of real estate with whom defendants later had dealings. The petition as amended is in two counts. In the first it is alleged that the performance of the service was under an express oral contract stipulating the compensation at $ 5.00 per acre; and in the second, it is alleged that the performance of the service was at the instance and request of the defendants for which the reasonable value thereof is predicated. Both counts refer to the same transaction and each count alleges that defendants sold or traded to one P. D. Norton 320 acres of land. The answer is a general denial, but admits the residence of plaintiff, the partnership relation of defendants, and that plaintiff introduced one of the partners to the said Norton.

There is but one error assigned and the point or proposition involves the ruling of the court on the evidence and the instruction of the court which precluded the plaintiff from a recovery on a quantum meruit. It must be and is conceded that a plaintiff under the facts herein may plead his cause of action in alternative counts, one on express contract fixing his compensation, and one on an implied contract or quantum meruit. This is a familiar and unquestioned rule. It is a legacy of the common law of pleading on the common counts, and is universally recognized in modern practice. Plaintiff at the initial stage of the proceeding may be apprehensive that he will not be able to meet by evidence the full measure of the requirements of the contract pleaded, and consequently he is privileged in a suit for the enforcement of the contract to add a second count. In other words, he is entitled to so plead to meet the contingencies of the proofs. However, if the evidence is insufficient to have the cause submitted to the jury on the two issues as pleaded, it is proper on the part of the court to deny the plaintiff the right to take the opinion of the jury on both counts. In the instant case plaintiff pleaded an express contract with a definite and agreed fixed compensation. Plaintiff testified: "On this Norton deal, the definite agreement was $ 5.00 an acre; and it was my understanding that it would not make any difference when he dealt, or what land. I did not go out with Clemens [defendant] nor Norton, and did not do anything further, so far as this land deal was concerned. I believe I never talked to them [defendants] about any land deals from the time that I introduced Louis Clemens to Norton until the time they dealt with Norton. I never brought them any customers or introduced anybody to them."

Defendants admit the introduction of Norton and further admit that there was an agreement to pay $ 5.00 per acre, but only in the event that a particular tract of land was sold or traded to Norton. The only dispute, therefore, between the...