Thormer v. Lexington Mail Order Co.

• Decision Date: 15 December 1954
• Docket Number: No. 674,674
• Citation: 241 N.C. 249,85 S.E.2d 140
• Parties: Dan THORMER, T/A Don Thormer Advertising Art, v. LEXINGTON MAIL ORDER COMPANY.
• Court: North Carolina Supreme Court

Page 140

85 S.E.2d 140

241 N.C. 249

Dan THORMER, T/A Don Thormer Advertising Art, v. LEXINGTON MAIL ORDER COMPANY.

No. 674

Supreme Court of North Carolina.

Dec. 15, 1954

Phillips & Bower, Lexington, for plaintiff, appellee.

DeLapp & Ward, Lexington, for defendant, appellant.

BOBBITT, Justice.

When the complaint and evidence are considered, it appears that the controversy posed by the first issue is whether the advertising matter prepared by plaintiff and furnished to defendant was in accordance with their agreement; and the core of this controversy is whether the agreement related solely to hand-drawn art illustrations rather than to retouched photographs.

If the advertising matter was in accordance with their agreement, in the absence of stipulation as to price, the defendant was obligated to pay the reasonable value thereof; for it is well established that when services are rendered under an agreement that compensation therefor is to be paid, the measure of recovery is the reasonable value of the services rendered. Turner v. Marsh Furniture Co., 217 N.C. 695, 9 S.E.2d 379, where Devin, J. (later C. J.) sets forth the elements to be considered in determining the reasonable value of such services.

The first issue having been answered, 'No,' the defendant, nothing else appearing, was under no obligation to accept and pay for the advertising matter prepared and furnished by plaintiff. Goldston Brothers v. Newkirk, 233 N.C. 428, 64 S.E.2d 424.

With reference to the third issue, the court instructed the jury, in part, as follows: 'Now, recovery on the quantum meruit is allowed in an action for work and labor founded on an implied promise on the part of the defendant to pay the plaintiff as much as he reasonably deserves to have for his labor and what the defendant reasonably deserves depends upon the reasonable and fair value of the plaintiff's services in the trade in which the defendant was engaged and the value of such services for one situated as was the plaintiff in his trade.'

And, bearing upon the third issue, the court instructed the jury that plaintiff contended: 'that the work was good and of a high quality; that plaintiff is a fine and skilled artist and * * * is entitled to the value of his time and the cost which he paid out; * * * that this represents the reasonable value of his services in the trade and to the plaintiff; * * * that this represents the amount which he deserves, regardless of whether or not there was any contract; * * * that the value of his time and what he put out to do this job for the defendant represents the reasonable value of his services and time * * *' etc. The instructions given convey the idea that the plaintiff was entitled to recover on quantum meruit the reasonable worth of all materials and services, including expenses incurred, tendered by plaintiff to defendant.

It would seem that, had the jury answered the first issue, 'Yes,' these instructions would have been appropriate if directed to the second issue. However, since the jury answered the first issue, 'No,' we are constrained to hold that they are incorrect; for plaintiff's right to recover for materials and services rendered, not in accordance with contract, is restricted to such materials and services as were accepted and appropriated by defendant. As to these, and these alone defendant must pay, on the basis of quantum meruit; and the basis of liability therefor is quasi contract, i. e., unjust enrichment. Restatement of the Law, Restitution sec. 1. 'The basis of this recovery is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing.' 12 Am.Jur., Contracts, sec. 353. As stated by Hoke, J. (later C. J.): 'The action of indebitatus...