Thormer v. LEXINGTON MAIL ORDER COMPANY

85 S.E.2d 140 (1954) 241 N.C. 249

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

No. 674.

Supreme Court of North Carolina.

December 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 assumpsit, as stated, is dependent largely on equitable principles. Mitchell v. Walker, 30 N.C. 243, and, in the absence of a special contract controlling the matter, and unless in contravention of some public policy, it will usually lie wherever one man has been enriched or his estate enhanced at another's expense under circumstances that in equity and good conscience call for an accounting by the wrongdoer." Sanders v. Ragan, 172 N.C. 612, 615, 90 S.E. 777, 778, L.R.A. 1917B, 681. It appearing that defendant accepted and appropriated at least one of the illustrations prepared and furnished by plaintiff, plaintiff was entitled to an issue relative thereto.

Where plaintiff sues to recover for services rendered to defendant, failure to prove the alleged special contract to pay therefor precludes recovery thereon; but, where services so rendered are accepted by defendant, plaintiff may recover therefor upon quantum meruit. Stokes v. Taylor, 104 N.C. 394, 10 S.E. 566; Morrison v. New Haven & Wilkerson Mining Co., 143 N.C. 250, 55 S.E. 611; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477. The measure of such recovery, predicated on implied assumpsit, is the reasonable value of the services so rendered by plaintiff and accepted by defendant. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R. 2d 1325, and cases cited. Thus in Moffitt v. Glass, 117 N.C. 142, 23 S.E. 104, a contractor sued to recover on special contract for building a house for defendants. The jury found that the defendants did not make the contract as alleged. The defendants went into possession, not accepting the house as in conformity with the contract but accepting it as it was for occupancy and enjoyment. Faircloth, C. J., says: "The plaintiff's right to a quantum meruit inquiry does not depend solely upon the contract, but upon the ground that he rendered service, in work and labor performed, the fruits of which were received by the defendants; * * *. Then, the quality of the material and work and the value thereof could be ascertained." While the more orderly method of pleading would be to allege the express contract and the implied contract separately, our decisions do not so require. McIntosh, N.C.P. & P., sec. 410. The complaint here seems broad enough to support a recovery on quantum meruit within the principles here stated without amendment. Jamerson v. Logan, supra.

In Harris v. Buie, 202 N.C. 634, 163 S.E. 693, cited by appellant, Clarkson, J., says: "When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for quantum meruit on an implied assumpsit." The evident meaning is that, when a special contract is admitted or established, and by its terms the compensation is stipulated, plaintiff's recovery must be in accordance with its stipulated terms and not otherwise.

The court properly overruled the defendant's motions for judgment as of involuntary nonsuit; but, in view of the negative answer to the first issue, the instructions relating to the third and fourth issues were in error and entitle defendant to a new trial. It is so ordered.

New trial.