Harris v. Harris-Ammer Furniture Co. ( 1922 )

McBRIDE, J.

This is clearly an action upon an express contract of hiring, every term being expressed except the amount to be paid for the services: Clark on Contracts (3 ed.), p. 20. If any contract is proved, it is an implied contract arising- from the rendition of services beneficial to defendant and which by the action of Harris in denying its execution was converted into an implied or guasi-contract. It is settled in this state that a plaintiff cannot declare upon an express contract and recover upon an implied contract. The evidence here tends to show no contract to pay plaintiff what the services were reasonably worth., but an agreement on the part of Harris individually to pay her by the delivery of a specific thing, namely ninety-eight shares of Ammer stock. If she were entitled to recover anything from anybody, on her testimony, it would probably be measured by the value of the stock. But these speculations are needless here, since it is clear that she has failed to prove the express contract alleged: Schade v. Muller, 75 Or. 225 (146 Pac. 144); Johnson v. Paulson, 83 Or. 238 (154 Pac. 685, 163 Pac. 435).

The judgment is affirmed.

Affirmed. Rehearing Denied.

Burnett, C. J., and Harris and Rand, JJ., concur.