Geistert v. Scheffler , 316 Mich. 325 ( 1946 )

I agree that inconsistent causes of action may be pleaded, but this case goes farther. The trial court ruled that the plaintiff could not recover on quantum meruit where his case was based on a claim for damages for breach of an express oral contract. The ruling was correct and the judgment of no cause of action should be affirmed. Where the plaintiff relies on breach of an express contract there can be no recovery on quantum meruit.

There can be no question but that the plaintiff relied on an express oral contract, and that the defendant admitted there was an oral contract for employment. The dispute was as to its terms. Plaintiff's original declaration was in a single count claiming damages for alleged breach of an oral contract of employment, to pay plaintiff a 5 per cent. commission on all business received by the defendant, and to give plaintiff a one-fourth interest in the business. Later, by leave of court, plaintiff added an amendment to the declaration consisting of the common counts in assumpsit. The defendant admitted that an oral contract of employment was entered into, but differed with the plaintiff as to the terms thereof. Throughout the jury trial the plaintiff consistently relied on the contract, although seeking to recover for the value of his services; and the defendant disagreed with plaintiff as to its terms. The court refused to receive testimony as to the value of the plaintiff's services and submitted to the jury the divergent claims of the parties as to what the agreement was. In charging the jury, the court said:

"This is a civil case, a case in which one party is seeking to recover damages from another, damages which he alleges he has sustained. In this case, damages growing out of an alleged breach of an oral expressed contract. * * * If from the testimony in the case you are satisfied by a preponderance thereof that such contract was entered into (as testified to by the plaintiff) and that plaintiff has so performed, he would be entitled to recover. It does not make any difference how little or how much or how hard or when he worked so far as his recovery is concerned. The question is, what was the contract? * * * The question therefore is, from the evidence in this case, on which claimed contract did the minds of the parties meet? Did they meet on the claimed contract of the plaintiff or did they meet on the claimed contract of the defendant? And that is the issue, ladies and gentlemen of the jury, that you have to determine from the evidence in this case. What is the fact? On what contract did the minds of the parties meet? Was it the contract that Mr. Geistert claims was entered into, or was it the contract that Mr. Scheffler claims the parties entered into."

The trial court's refusal to allow the plaintiff to show the value of his services for the purpose of recovering under the common counts was proper, and the case was properly submitted to the jury on the theory that recovery of damages could be had only for breach of the claimed oral contract.

"Where, in a suit to recover for services rendered and expenses incurred in negotiating a loan and perfecting the applicant's title, each party relies upon the existence of an express contract, and the sole question of fact is as to its terms, it is not error for the court to refuse to submit to the jury the question of plaintiff's rights under an implied contract."Swarthout v. Lucas (syllabus), 101 Mich. 609.

"Both parties testifying to an express agreement as to compensation for a portion of the services rendered, and disagreeing as to its terms, it was error to permit the jury under a declaration for breach of an express contract to render a verdict on the theory of an implied contract to pay what such services were worth." Ruttle v. Foss (syllabus), 161 Mich. 132.

"The law in this State seems to be well settled that where an express contract is entered into between parties, but they differ as to the terms thereof, and there is evidence tending to support the claim of each of them, it is for the jury to determine what the terms of the contract were, and there can be no recovery on the quantum meruit.

"In Swarthout v. Lucas, 101 Mich. 609, 612, it was said:

"``There was no room for the jury to find an implied contract. Each claimed an express contract, and the sole question of fact was, which claim was the correct one?'

"See, also, Schurr v. Savigny, 85 Mich. 144; Shaw v.Armstrong, 88 Mich. 311; Ruttle v. Foss, 161 Mich. 132."Millar v. Macey Co., 263 Mich. 484, 488, 489. Millar v. Macey Co., supra, was remanded for a new trial on the ground that the trial court had erroneously submitted to the jury the question as to the value of the plaintiff's services. On retrial by jury the plaintiff again had verdict and judgment, which was again reversed (Millar v. Macey Co., 269 Mich. 265), where the Court said (pp. 268, 269):

"Upon the second trial, everyone recognized that quantummeruit was not involved. But plaintiff, on plea of proving the contract by showing how the parties had treated it and by way of implied admission, again, but in a different manner, introduced most of the evidence held incompetent on the former trial respecting the amount and character of the work done by him on the Union Trust Company order and developed the fact that he had originated negotiations for the order and was largely instrumental in defendant getting it. He did this by showing conversations between plaintiff and officers of defendant throughout the course of the negotiations wholly apart from any discussion about commissions. * * *

"Plaintiff's evident purpose in presenting the testimony was to convince the jury that he was responsible for the order and ought to be paid for it. In other words, the effect was to seek recovery indirectly on the quantum meruit although it had been eliminated from the case. The testimony was reversible error."

In Clifton v. Village of Constantine, 294 Mich. 304, this Court held (syllabi):

"Where express contract is entered into, but parties differ as to terms thereof, and there is evidence tending to support claim of each, it is for jury to determine what terms of contract were, and there can be no recovery on quantum meruit.

"Refusal of court to charge jury that plaintiff could recover on quantum meruit was proper where the parties had a contract and the question of their differences as to its meaning was properly submitted to the jury, notwithstanding declaration included a quantum meruit count."

See, also, Schurr v. Savigny, 85 Mich. 144; Shaw v.Armstrong, 88 Mich. 311; Fuchs v. Standard Thermometer Co.,178 Mich. 37.

In the case before us plaintiff claims and the defendant admits that there was a valid oral contract, and no claim is made by either party that the contract was void under the statute of frauds.^* Hence, recovery cannot be had on a quantum meruit although recovery would otherwise be permissible if the express contract had been void under the statute. This Court has said:

"There is, however, another rule of law that allows recovery on a quantum meruit theory where the plaintiff has performed services under an express agreement which is not enforceable because of the statute of frauds or some other statute that prevents recovery on the terms of the agreement itself. Smith v. Chase Baker Piano Manfg. Co., 185 Mich. 313. We held inMoore v. Capewell Horse Nail Co., supra (76 Mich. 606), that there was no objection to permitting proof of the contract for the purpose of showing the value placed upon plaintiff's services by the parties. See, also, Cadman v. Markle, 76 Mich. 448 (5 L.R.A. 707). A contract, though void under the statute, may be admissible if helpful in estimating damages. Kutzner v.Stuart, 215 Mich. 270.

"A consideration of these two rules leads us to the conclusion that when the terms of an express contract, unenforceable because of the statute of frauds, are in dispute, a recovery can be had under the common counts on the theory and under the condition that the jury first determine: (1) that the contract alleged by plaintiff actually was made; and (2) that the terms were such as are alleged, and (3) that the contract has been fully executed by one party and the other has received the benefits. Winchester v. Brown, 264 Mich. 421." Vanderhoef v. Parker BrothersCompany, Ltd., 267 Mich. 672, 680, 681.

Obviously the situation in the instant case does not come within the exception thus announced. Here there is no claim that the oral contract is void. The trial court properly submitted to the jury the question of fact as to whether the plaintiff's version of the oral contract in dispute was supported by a preponderance of the evidence. There could have been no recovery on quantum meruit.

The conclusion above reached, and the verdict of the jury on the issues of fact, bars plaintiff from recovery. Other questions urged for reversal, mainly on admissibility of testimony, do not affect the result. The judgment as entered on the verdict is affirmed, with costs to appellee.

BUTZEL, C.J., and CARR, BUSHNELL, and SHARPE, JJ., concurred with BOYLES, J. STARR, J., did not sit.

^* See 3 Comp. Laws 1929, § 13417 (Stat. Ann. § 26.922). — REPORTER.