Birlant v. Cleckley

The opinion of the Court was delivered by Mr. Chief Justice McIver. The plaintiff brings this action to recover from defendant the balance alleged to be due him upon a special contract in writing, a copy of which is attached to and made a part of this complaint. The defendant answered, denying each and every allegation of the complaint except that she made the written agreement set forth in the complaint, but she alleges that such agreement was, “in all respects, set aside, and the plaintiff agreed to — 304 — and did work for defendant by piece-work, for which he was fully paid.” Without undertaking to set forth here all the terms of the written agreement upon which the plaintiff’s action is based, it will be sufficient, for the purposes of this appeal, to say that by the terms of such written agreement, the plaintiff stipulated to serve the defendant for the term of five years from the 17th July, 1893, in consideration whereof he was to be paid by defendant a specified sum of money per week for such services, and plaintiff alleges in his complaint that he did so serve the defendant for a time stated, and that after deducting the sum of the payments made to him by the defendant, there remained a balance of $1,100 due him under said written agreement, for which sum he demanded judgment. None of the testimony appears in the “Case,” which consists only of the pleadings and the charge of his Honor, Judge Benet, together with the verdict of the jury in favor of the plaintiff for the sum of $296; and from the judgment entered thereon, the defendant appeals upon the single ground: “That his Honor erred in charging the jury that the plaintiff could, under any circumstances, under this complaint, upon a specific contract, recover a quantum meruit for his services.” Inasmuch as it is contended that the Circuit Judge did not charge the jury as represented in defendant’s ground of appeal, it will be necessary that the charge should be incorporated in the report of this case. Counsel for respondent interpose two preliminary objections to the consideration of the point raised by this appeal, which must first be disposed of. These objections are: 1st. That the Circuit Judge did not charge the jury as represented. 2d. Because the exception fails to point out any specific error of law. 1 The first objection is to be disposed of by an examination of the charge of the Judge as to the point referred to. It is obvious from the pleadings and the Judge’s charge, that one of the issues involved was whether, as alleged by defendant in her answer, the written contract, as set out in the complaint, had been altered by a subsequent — 305 — verbal agreement between the parties, and if so, what was the effect of such alteration. As to this, the plaintiff, by his eighth request, asked the Judge to charge as follows: “That if the jury find there was an alteration, and the alteration was not made as to the time the original contract was to continue, then the new parol contract, consisting of the alteration and the remaining part of the original written agreement, is void, being a parol contract for service for the term of five years, and hence within the statute of frauds;” to which the Circuit Judge responded as follows: “That is the law. Under the statute of frauds, which is in force in this State, it is held that no action shall be brought on any agreement that is not to be performed within the space of one year, unless such agreement, or memorandum thereof, shall be in writing, and signed by the parties thereto. If you come to the conclusion, in this case, that there was an alteration as to the original terms of the contract, but there was no alteration as to the five years, then that new parol contract would be void, because within the statute of frauds. It would then be a parol agreement, and no action could be brought on such an agreement, because the time is more than a year, viz: five years.” Then follows the plaintiff’s ninth request, stated in the following language: “That an alteration may be made as to one part of a contract, the part unaltered still remaining in force, and if the jury find that the new contract was for five years, and hence, under the instruction of the Court, void, then the plaintiff is entitled to recover a quantum meruit for his services.” To this request his Honor responded as follows: “That is the law. While he could not bring an action under the contract, he would be entitled to the value of his services proved in the case. So if you come to the conclusion that there was an alteration consented to by both of the parties making a new parol contract, but if you find that alteration did not affect the five years, then that contract would be void as a contract, but the plaintiff would be entitled, nevertheless, to recover the value of his services.” Inasmuch as it is per — 306 — fectlv manifest, from the plaintiff’s complaint, that he based his action upon a special contract, and the Circuit Judge so said in the outset of his charge to the jury, it is clear that the Circuit' Judge, in his charge quoted above, while not using the precise language contained in defendant’s ground of appeal, di.d instruct the jury that under certain circumstances, viz: if the special contract, upon which plaintiff based his action, was void under the statute of frauds, the plaintiff might still recover, in this action, upon a quantum meruit. The respondent’s first preliminary objection cannot be sustained. 2 3 The second preliminary objection — that the exception fails to point out any specific error of law — must likewise be overruled; for it makes distinctly the point that, under a complaint based upon a special contract, the plaintiff cannot recover on a quantum meruit. This is not like the cases referred to by counsel for respondent, where the exceptions impute error in la3'ing down propositions of law applicable to given facts, in which case the facts should be stated; for here the exception is based wholly upon the pleadings and the charge of the Judge, both of which are fully set out in the “Case;” and the question presented is, whether, under a complaint based upon a special contract for services to be rendered by plaintiff to defendant at a specified price, the plaintiff can recover upon a qtiantum meruit. This question, it seems to us, is conclusively determined in favor of the appellant by the case of Fitzsimons v. Guanahani Co., 16 S. C., 192; for in that case the action was based upon a special contract, and it was held that the Circuit Judge erred in instructing the jury that the plaintiff might recover on a quantum meruit. In that case, the late Chief Justice Simpson, in delivering the opinion of the Court, used the following language, which seems quite appropriate to the present case: “The propositions of law then laid down by the (Circuit) Judge, we think, were entirely correct in the abstract, and would have been correct here if this action — 307 — had been founded upon a quantum meruit. But the action was not founded upon a claim of that kind; it was brought on a special contract alleged to have arisen under the provisions of the .Statute of Georgia referred to. This being so, the effect of the Judge’s charge was to change the nature of the action, during the progress of the trial, from an action on a special contract, which the pleadings prescribed (described?) and which the parties had met to have adjudicated, to an action on a quantum meruit, which did not appear in the pleadings, and which, therefore, was calculated to take the defendant by surprise.” The learned Judge then proceeds to say that,-possibly, the plaintiff’s difficulty might have been removed by amendment; “but there should -have been a motion to that effect.” Under this case, it scarcely seems necessary to say more. It is very obvious that both the allegations and proofs necessar)' to sustain a claim under a quantum meruit are very different from those necessary to sustain a claim under- a special contract to serve another for a specified time at a specified price, for in the former case it is incumbent on the plaintiff to show that he has served the defendant, the length of such service, and what amount his services are reasonably worth, while in the latter case it is only necessary for the plaintiff to show that he has performed his part of the contract. It would, therefore, be manifestly unjust that a party notified to respond to one kind of claim, should be required, in the midst of the trial, to respond to another kind of claim, depending upon issues different from those which he was notified to meet. 4 The case of Tarrant v. Gittelson, 16 S. C., 231, cited and relied upon by counsel for respondent, is not in point; for there the Circuit Judge allowed the plaintiff to amend his complaint, originally based upon a quantum meruit, by alleging a special contract, while here it does not appear that any amendment was either asked for or allowed. We certainly cannot assume that any amendment of. the complaint was either applied for or obtained, as the “Case” shows nothing whatever to that — 308 — effect; and, as we have frequently held, this Court cannot consider anything which does not appear in the “Case” as settled or agreed upon for argument here. The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial, with leave to the plaintiff to move before the Circuit Court, if he shall be so advised, for such amendment to his complaint as may be deemed proper by that Court.