Tuffree v. Steward ( 1899 )

Given, J.

I. Appellant contends that the court erred in admitting testimony, over his objection, -in support of plaintiff’s claim on the qucmtum, meruit, on the ground that there was no> dispute that plaintiff and defendant had agreed upon a compensation of one hundred dollars. That they 1 so agreed was denied in the answer, and at the time this evidence was offered had not been admitted on thei trial. Plaintiff had the right to and had declared both upon the agreement and the quantum meruit, and he had the right to introduce evidence in support of both, at the time it was introduced, -they being denied.

Appellant further claims that the court erred in submitting the case to the jury.on the second count, upon the ground that the defendant had admitted in his testimony that he and the plaintiff had agreed upon one hundred dollars 2 compensation. Plaintiff and defendant both testified to its having been orally agreed that defendant should pay plaintiff one hundred dollars compensation oh the conditions alleged in the petition. There being a contract. thus admitted, plaintiff’s right to recover was thereon, and not upon the qucmtum meruit. Therefore the court erred in submitting the second count to the jury.

These two causes of action are improperly joined in the first count, but, if it were_otherwise,- it would not cure the error of submitting plaintiff’s claim under the second count. Other errors assigned and argued are without merit, or such as will not arise upon a retrial. Por the error pointed out 'he judgment is reversed.