Wade v. Nelson

ELLISON, J. Plaintiff instituted this action to recover commission as a real estate agent on account of the sale of defendant’s farm in Camden county. The judgment in the trial court was for the defendant. The petition is based on an express contract whereby defendant employed plaintiff to procure him a purchaser for his farm and that he agreed to pay plaintiff for his services all over the sum of $7,250, for which he might sell the farm. The petition then charges that he, plaintiff, carried out that contract on his part- by finding a purchaser who purchased the land of defendant for $7,-750, whereby plaintiff, under the contract, became entitled to be paid by defendant the sum of $500, which sum defendant refused to pay. When it came to the trial the evidence did not support the petition. A recovery could only be had on a quantum meruit. It is -well established in this State that in an action on an express contract, alleged to have been performed by the plaintiff, there cannot be a recovery on a quantum meruit. [Huston v. Tyler, 140 Mo. 252; McDonnell v. Stevinson, 104 Mo. App. 193; Eyer-man v. Mt. Sinai Cem., 61 Mo. 489; Lumber Co. v. Snyder, 65 Mo. App. 503; Squire v. Brewing Co., 90 Mo. App. 462; Cox v. Bowling, 54 Mo. App. 289.] Plaintiff recognizes this rule of law and claiming that he is, in point of fact, entitled to compensation of which the defendant is depriving him, he asks that the cause be remanded .to the end that he may file an amended petition. But we feel we could not do this without sanctioning an innovation of practice which would prove to be harmful as a precedent. This renders it unnecessary to consider objections to the action of the court on instruction and to its ruling [281] on evidence. The court on the basis of the case, as made by the petition, was justified in refusing instructions offered by plaintiff and in making omissions of his theory, in the instructions given for defendant, and of its own motion. We must, therefore, affirm the judgment. All concur.