Cale v. Kiner , 44 Ohio Law. Abs. 407 ( 1945 )

OPINION

BY THE COURT:

Plaintiff plead in quantum meruit on am implied contract for services rendered. Issue was drawn upon an answer which was substantially a general denial with an affirmative plea of payment and a reply denying payment.

Plaintiff’s evidence as developed by her counsel in the opening statement to the jury would have established an express contract covering not only the agreement to pay for the services but the amount to be paid. This evidence could not have supported a verdict and judgment for plaintiff on, her cause of action as pleaded and on the issues drawn.

“Where there is an express contract none can be implied.”

Creighton v City of Toledo, 18 Oh St 447.

The record discloses no request for leave to amend petition or to change or enlarge the opening statement to the jury.

Judgment affirmed.

HORNBECK, P. J., GEIGER and MILLER, JJ., concur.