Osterling v. Cape May Hotel Co.

The opinion of the court was delivered by Parker, J. Throughout the trial (he insislmont on the part of the plaintiff was that he was entitled to recover upon an implied assumpsit for the reasonable value oí bis services as claimed to have been rendered, and extending up to the completion of the hotel building upon which he was employed. There was a written contract, prescribing his duties and the character and amount of compensation to he made for their performance; hut plaintiff avoided the use of this contract as a basis of recovery, relying on the rendition and acceptance of the services as raising an implied promise to [652] pay for thorn, and putting in expert proof as to the reasonable value of those sendees in terms of percentage of cost of the work, and also introducing the contract in evidence, over objection and exception, “as authority for doing the work, and as a basis of calculation.” Throughout the trial defendant, on the other hand, maintained that implied assumpsit on a quoAitvAn mervit would not he, and that the suit should have been brought as for performance of the written contract and for the compensation therein stipulated or damages for failure to make it. The importance of the issue thus made becomes manifest on an examination of the provisions of the contract relating to compensation. The second paragraph fixes it at five percent. on total cost; the third provides that plaintiff may be discharged and in such case shall be paid as though the work had then been abandoned. The fourth is here copied in full: “Fourth. It is mutually agreed that the compensation to be paid to the party of the second part, in amount above specified, shall be paid in lots of the Cape May Real Estate Company, which lots are to be taken at schedule prices and upon tlie terms already adopted by the Cape May Real Estate Company; and such lots shall at once be selected by the party of the second part from Plan A of the Cape May Real Estate Company and from lots that are not at this time sold or on option, and annexed hereto is a marked map of Plan A of the Cape May Real Estate Company from which said selections shall be made by the party of the second part, and no lots shall be selected which are marked on said map. In the event of the employment of the party of the second part being terminated before the completion of said building then the selections shall abate to the amount that is found to be due to the party of the second part at the time of the termination of his services. In case of delay in the selection of said lots all lots sold by the Cape May Real Estate Company in the meantime shall be marked off of said map before the selections are made.” It is plain from a reading of these provisions that the agreement for payment was not to pay in money but to pay [653] in a certain quantity of lots to be selected by plaintiff, the quantity or number to be determined not by the actual value of the lots as footing up the amount in dollars figured at five per cent, on total cost, but by the list price of such lots. Of that list price we know little or nothing from.the evidence. It may be more or less than the real value of the lots or some of them. The question of actual value was not dealt with by the court, nor the question of payment in lots, but the jury were permitted to assess plaintiff’s damages as upon an implied assumpsit to pay the reasonable value of his services in cash. We consider that this entire theory of recovery was erroneous. The contract was entire on the plaintiff’s part; it was express, as to its terms, and in writing so that the terms were settled beyond dispute. The express promise was not the same as the law would imply; so that the declaration should have been on the special contract. Princeton., &c., Turnpike Co. v. Gulick, 1 Harr. 161. An implied contract cannot exist when there is an express contract embracing the identical subject. Voorhees v. Woodhull, 4 Vroom 494. Recovery might be had on a quantum valebat if the contract was unfulfilled and was rescinded by the parties (Brewing Co. v. Donnelly, 30 Id. 48), but such was not the case here, and indeed the contract expressly provided for the same character of compensation in case of discharge. Assuming the performance by plaintiff of the written contract and a failure by defendant to make compensation as specified therein, there arose a right of action for damages, and the measure of damages was not five per cent, of cost in cash, but the fair value of the lots that plaintiff was entitled to at list prices. Hinchman v. Rutan, 2 Id. 496, 497. The special agreement was not admissible in evidence under the common counts to fix the price stipulated, as it did not call for payment in money. Weart v. Hoagland, 2 Zab. 517. There was an objection to the introduction of the contract in evidence because the action was on the common counts, which was overruled and exception taken; and there was a motion [654] to nonsuit on the ground, among others, that the special contract precluded recovery on the implied assumpsit under the conditions of the case. This was also overruled and exception taken, and these exceptions are assigned for error. The objection should have been sustained and the motion to non-suit granted. These errors go to the root of the case and' require a reversal of the judgment that a venire de novo may issue. We have considered the other assignments of error but the result reached above renders it unnecessary to discuss’them. The reversal of the judgment carries with it the execution and levy and the rule discharging the rule to show cause, so that no special discussion of these proceedings is required. For affirmance—None. 'For reversal—The Chief Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Kalisch, Bogert, YredenBURGH, YllOOM, CONGDON, WHITE, JJ. 12.