Harder v. Reedy

Mercure, J. Appeal from a judgment of the Supreme Court (Mycek, J.), entered July 25, 1994 in Saratoga County, upon a verdict rendered in favor of plaintiffs. Plaintiffs entered into a November 1989 contract with defendants Joseph Reedy and Janet Reedy (hereinafter collectively referred to as defendants) under the terms of which plaintiffs agreed to construct a residence for defendants for $169,140. Although the contract expressly provided that no changes, alterations or extra work was to be performed unless first authorized by written order stating the amount to be paid therefor, it is undisputed that a number of modifications, additions and upgrades were made in the absence of any written order. When a dispute arose over payment for these extras, plaintiffs commenced this action alleging in the amended complaint, as relevant to this appeal, that there was due and owing to plaintiffs the sum of $42,644 for extra work and materials that had been approved by defendants without any written change order. Following a trial, the jury awarded plaintiffs $14,763.12 as the reasonable value of the extra work performed, and defendants now appeal. The sole contention advanced by defendants is that Supreme Court erred in submitting the matter to the jury on a theory of quantum meruit instead of the contract theory they requested. There is merit to the contention and we are, accordingly, constrained to reverse Supreme Court’s judgment on plaintiffs’ second cause of action and order a new trial thereon. Initially, our reading of the second cause of action of the amended complaint (by no means a model of clarity) leads us to the conclusion that plaintiffs sued the action on a contract theory. We note in this regard the allegation in paragraph 11 of the amended complaint that "[defendants] requested] certain extra work, changes, alterations, modifications, upgrades and tradeoffs, and they were done and approved by [defendants] * * * and for such work there is now due and owing the sum of [$42,644]”. Further, plaintiff Robert Harder’s relevant trial testimony on the issue was limited to a description of each item of extra work done or materials supplied and the parties’ agreement concerning the charge to be imposed therefor. On no occasion did Harder offer testimony as to the reasonable value of the extra work he performed (except to the extent that the agreed price may be the appropriate measure of damages under a quantum meruit theory [see, Farron v Sherwood, 17 NY 227; Raile v Peerless Am. Prods. Co., 192 App Div 506; 22 NY Jur 2d, Contracts, § 553, at 569-570]). [834] In view of the ample evidence (and defendants’ candid concession) that defendants waived the requirement of written change orders, we conclude that Harder’s testimony provided a sufficient evidentiary basis for a finding that the parties entered into separate oral agreements with regard to each of the extras. Fundamentally, where the existence of a contract is proven there may be no recovery by a plaintiff under a theory of quantum meruit or unjust enrichment (see, e.g., Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388-389; Foss v American Tel. & Tel. Co., 199 AD2d 668, 669; Panetta v Tonetti, 182 AD2d 977, 978, lv denied 80 NY2d 756). That being the case, Supreme Court should have submitted the contract theory to the jury (see, Heydt Contr. Corp. v Tishman Constr. Corp., 163 AD2d 196, 197).* Further, because we are not persuaded that there is no view of the evidence under which defendants could have prevailed if the contract theory had been submitted, we cannot subscribe to the dissent’s conclusion that Supreme Court’s error was harmless. As a final matter, we decline to exercise our discretion under CPLR 5523 to order restitution to defendants. Cardona, P. J., and Mikoll, J., concur. Footnotes [*] Of course, all theories appropriately supported by the evidence, including quantum meruit, may be submitted to the jury upon retrial.