Hayes v. Bunch

BLAND, P. J. — At the close of plaintiff’s evidence and again at the close of all the evidence, defendant ashed the court to instruct the jury to find for the defendant. The refusal of these offers, is assigned as errors. The contention is that the action is on an express contract and that no such contract was proven nor any evidence offered tending to prove an express contract and that plaintiff was allowed to recover on quantum meruit. , The jury was instructed on the theory of an expressed contract and also on a quantum meruit. “An express contract exists where the terms of the agreement are openly uttered or avowed at the time of the making.” Anderson’s Law Dictionary, p. 248. “Contracts are expressed when the terms are stated by the parties in writing or verbally.” 1 Parsons on Contracts, p. 6, n. 1. The petition alleges an expressed agreement between plaintiff and defendant to the effect that plaintiff should perform those services, and the customary price for such services was one thousand dollars; that he, in addition to the contract services, performed certain extra services worth four hundred dollars. The contract declared on is an express contract. The rule is that a plaintiff can not declare on an express contract and recover on a quantum meruit. Eyerman v. Cemetery Association, 61 Mo. 489; Lewis v. Slack, 27 [471] Mo. App. 119; Warson v. McElroy, 33 Mo. App. 553; Traders’ Bank v. Payne, 31 Mo. App. 512. But it is a well-settled rule of practice in appellate courts, that when the appellant has asked that a certain issue be submitted to the jury, he will not afterwards be heard to challenge the verdict on the ground that it was improper to submit such issue to them. Berkson v. K. C. Cable Ry. Co., 144 Mo. 211; Dunlap v. Griffith, 146 Mo. 283; Price v. Hallett, 138 Mo. 561. Appellants did not object to the evidence of plaintiff tending, to prove an implied contract, and at the close of all the evidence asked, and was given, the following instruction: “The jury are instructed that if you find from the evidence that the plaintiff did perform any service or services for the defendant of the character mentioned in his petition, but that at the time the same were rendered he did not intend make charge therefor, then he can not afterwards alter such intention and if you believe from the evidence this to be the fact, then even though you should find that services of some value were rendered to and received from the plaintiff by defendant, still your verdict will be for the defendant. “The burden of proving that he rendered services to the defendant, that such services were of value, that the same were rendered by him with a view to demanding payment therefor, and under such circumstances as would induce the defendant to believe at the time the same were received that payment was expected and would be demanded, is upon the plaintiff, and unless he has established these facts by preponderance of the evidence, your verdict will be for the defendant. “The fact, if you find it to be a fact, that plaintiff rendered some or all of the services mentioned in his petition does not of itself authorize a recovery in this case unless the jury further finds that at the time such service or services were rendered there was an intention on the part of the plaintiff to demand payment for the same, and that the defendant’ believed or had reason to believe at the time he accepted the same that [472] such was the intention of plaintiff; and in determining these questions, you may take into consideration whether or not plaintiff’s demand for payment was promptly made or otherwise; the relations existing between the parties; statements, if any you find from the evidence, made by plaintiff concerning such matter; what, if any, arrangements were made between the parties as to the amount of plaintiff’s compensation, and all other circumstances in evidence. And unless the jury do believe from the evidence that the services rendered were so rendered by plaintiff with the expectation of demanding payment therefor, and that they were received by defendant with, reason to believe at the time they were so rendered that such intention existed on the part of plaintiff, then your verdict will be for the defendant.” Plaintiff’s instructions submitted the case on the same theory, that is, that plaintiff might recover on a quantum meruit. In this condition of the record appellant is estopped by his conduct, to insist that the case was tried on an erroneous theory. State v. Whitmore, 147 Mo. 78; Christian v. Ins. Co., 143 Mo. 460; Frankenthan & Bro. v. Guardian Assurance Co., 76 Mo. App. 15; Marks v. Davis, 72 Mo. App. 557; Drug Co. v. Self, 77 Mo. App. 284; Plummer v. City of Milan, 79 Mo. App. 439. Discovering no reversible error in the record, the judgment is affirmed. Barclay and Goode, JJ., concur.