Staples v. Esary

• Decision Date: 28 August 1924
• Docket Number: 18503.
• Citation: 228 P. 514,130 Wash. 521
• Court: Washington Supreme Court
• Parties: STAPLES et ux. v. ESARY et ux.

228 P. 514

130 Wash. 521

STAPLES et ux. v. ESARY et ux.

No. 18503.

Supreme Court of Washington

August 28, 1924

Department 1.

Appeal from Superior Court, King County; Ronald, Judge.

Action by W. B. Staples and wife against James D. Esary and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Byers &amp Byers, of Seattle, for appellants.

Elias A. Wright and Sam A. Wright, both of Seattle, for respondents.

MACKINTOSH J.

Respondents sought judgment against the appellants in the sum of $1,746.12. In their complaint, respondents allege that this amount was due under a contract entered into between the respondents and the appellants for the use of certain property belonging to respondents, and for the respondents' services. These allegations are contained in the first cause of action. Evidently, being concerned as to the sufficiency of their evidence to substantiate an express contract, respondents set out a second cause of action asking for the same amount as the reasonable value of the use of the property and the services rendered. The prayer was for only one recovery. The appellants moved against this complaint, to strike either the first or second cause of action, or to compel the respondents to elect upon which cause of action they would proceed, upon the theory that the complaint stated two separate, distinct, and inconsistent causes of action.

This presents the first assignment of error, and we are called on to determine whether plaintiff may ask in his complaint alternative relief, either upon an express contract or in quantum meruit in the same transaction. In Gabrielson v Hague Box Co., 55 Wash. 342, 104 P. 635, 133 Am. St Rep. 1032, Holm v. Chicago, M. & P. S. R. Co.,

59 Wash. 293, 109 P. 799) which does not refer to the Gabrielson Case, held that a plaintiff may plead in the alternative an express contract, or an implied one in quantum meruit, without being subject to an election. The court there goes into the authorities and says:

'As we have seen, the appellant predicates his right to recovery both upon an express contract and upon a quantum meruit. A party may present his case in the alternative. The wisdom of the rule is apparent. In many cases a reasonable doubt may exist in the mind of the pleader whether there was an express contract, and, if so, whether his evidence is sufficient to establish it. In such cases a prudent pleader will so frame his pleading, as to admit proof and to permit a recovery upon either ground.'

That language again covers the exact situation presented by the complaint in the case here, and in effect reverses much of the Gabrielson Case and states a contrary rule. The law seems to have remained in that condition until the case of Coleman v. St. Paul & Tacoma Lbr. Co., 110 Wash. 259, 188 P. 532, where incidental reference is made to the Gabrielson Case. The Holm Case seems to have escaped the attention of both court and counsel, and it is said:

'Each of the purported causes of action is founded upon the same transaction and, instead of being a statement of separate causes of action, it is a statement of a single cause of action in different forms or counts. This was familiar practice at the common law, but it has no sanction in the procedure as prescribed by the Code. Indeed, we have heretofore condemned it. Gabrielson v. Hague Box & Lumber Co., 55 Wash. 342, 104 P. 635, 133 Am. St. 1032. * *

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