Sharp v. Sharp
| Decision Date | 15 March 1923 |
| Docket Number | 5042. |
| Citation | 213 P. 799,66 Mont. 438 |
| Parties | SHARP v. SHARP. |
| Court | Montana Supreme Court |
Appeal from District Court, Big Horn County; Robert C. Stong, Judge.
Action by E. G. Sharp against J. E. Sharp. From judgment for plaintiff and an order overruling motion for new trial defendant appeals. Affirmed.
Guinn & Maddox, of Hardin, for appellant.
T. H Burke, of Hardin, for respondent.
The plaintiff filed his complaint against the defendant to recover the sum of $867, alleged to be due him as a balance for work and labor performed for defendant between October 5 1919, and July 17, 1920, at the rate of $35 per week. The complaint contained two counts, the first being upon an express contract and the second upon quantum meruit.
The defendant answered, admitting that plaintiff had rendered the services alleged, but claimed that the agreed wage was $60 per month, all of which had been paid, and also set up two counterclaims against the plaintiff, the first of which was for board and lodging alleged to have been furnished to the plaintiff's family between January, 1916, and March, 1920, amounting in all to $360; the second being for the sum of $81.35 on account of goods, wares, and merchandise alleged to have been sold and delivered to the plaintiff by the defendant between October 8, 1919, and July 17, 1920.
Issue was joined on the counterclaims by plaintiff's reply. The cause was tried to a jury and resulted in a verdict and judgment in favor of plaintiff in the sum of $357. Defendant filed a motion for a new trial, which was overruled. The appeals are from the judgment and the order overruling the motion for a new trial.
Although specifications of error Nos. 1, 3, and 4 are wholly insufficient under rule X of this court (202 P. x), and consequently not entitled to any consideration, all the matters therein suggested are covered by a consideration of specification No. 2, which is in effect that the court erred in denying defendant's motion to require the plaintiff to elect upon which count of his complaint he would rely. This motion was made during the progress of the trial, and at the close of all the testimony the same was denied.
The rule is that in a case of this kind, when there is more or less uncertainty as to the grounds of recovery, there may be properly joined a count upon express contract and a count upon quantum meruit (Blankenship v. Decker, 34 Mont. 292, 85 P. 1035; Neuman v. Grant, 36 Mont. 77 92 P. 43), and that where, as in this case, application is made during the course of the trial to require the plaintiff to elect upon which count he will rely, the question of granting or overruling the motion is addressed to the sound legal discretion of the court. Mellon v. Fulton, 22 Okl. 636, 98 P. 911, 19 L. R. A. (N. S.) 960; Manders v. Craft, 3 Colo. App. 236, 32 P....
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