Brown v. Sandler

Exceptions overruled. In this action of contract to recover for legal services alleged to have been rendered to the defendant, the plaintiff had a verdict. There was evidence that the plaintiff performed legal services for the defendant at his request and had not been paid. The defendant excepted to the denial of his motion for a directed verdict. In support of this exception he argues that there was a variance between the declaration, which was on an account annexed, and the proof, which showed an express contract. This question is not open for the reason that the motion for a directed verdict was not based on the pleadings. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384r-385. Melnick, petitioner, 324 Mass. 524, 529. But even if the point was properly raised it is lacking in merit. It is settled that under a declaration with an account annexed a plaintiff may recover money duo under a special contract that has been fully performed. Egan v. Massachusetts Bonding & Ins. Co. 266 Mass. 270, 273. Biggs v. Densmore, 323 Mass. 106,108. The exception to the charge is also without merit. It is true that the judge erroneously charged that the declaration contained two counts, one based on an express contract and one on quantum meruit, but he corrected this mistake when it was brought to his attention and the defendant was not harmed.