Opinion
7 Div. 471.
April 17, 1924.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Goodhue Lusk, of Gadsden, and Brenton K. Fisk, of Birmingham, for appellant.
Where there is an express contract, it fixes the right and liability of the parties and excludes the idea of an implied contract. Alexander v. Ala. West. Ry., 179 Ala. 480, 60 So. 295; Loval v. Wolf, 179 Ala. 505, 60 So. 298. No contract can be implied against the expressed declaration not to be bound. Meaher v. Pomeroy, 49 Ala. 146; Hodges v. Sublett, 91 Ala. 588, 8 So. 802; McGowin v. Camp, 192 Ala. 35, 68 So. 263.
E. O. McCord Son, of Gadsden, for appellee.
No brief reached the Reporter.
On the undisputed evidence before the trial court we can find no basis for any recovery of compensation by plaintiff. Manifestly, if plaintiff can recover at all, it must be either under the terms of the written contract made between him and defendant on January 7, 1920, and remaining in full force and effect during the period of his alleged service, or it must be under a new contract, expressed or implied, for the performance of the services alleged to have been rendered.
Plaintiff's contention is that the written contract of January 7, 1920, expired at the end of 1921, and that his obligations thereunder ceased upon its expiration, not merely as to the treatment and care of employees who were injured after that time in 1922, but also as to the further treatment and care of those who had been injured in 1920 and 1921, pending the operation of the contract. If this view of the matter is correct, it is of course fatal to any right of recovery under the contract.
The evidence shows that plaintiff is not claiming under the, written contract, but only upon an implied obligation on the part of defendant to pay plaintiff a reasonable compensation for the services rendered by him.
The evidence shows without dispute that, when plaintiff inquired of defendant's agent as to the performance of these services, the agent informed him that it was plaintiff's duty to perform them under the written contract, and that defendant would not pay him for it. It is well settled that the law will not imply a promise against the express declarations of the party to be charged, made at the time of the supposed undertaking. Meaher v. Pomeroy, 49 Ala. 146; Hodges v. Sublett, 91 Ala. 588, 8 So. 800; 5 Corp. Jur. 1385, § 14. The reason for this rule is that all contracts must be based on the mutual agreement of the parties. The difference between an expressed and an implied contract is merely in the mode of proof, the elements being the same, and where mutual agreement is contradicted by the statements of either party at the time, there being no expressed agreement, there can be no implication of contractual undertaking by that party.
It is not necessary to construe the written contract further than to say that it clearly did not impose upon defendant any obligation to pay for these services any more than 17 1/2 per cent. of the premium paid to defendant by the assured company, which, as plaintiff testified, had already been paid to him in full.
It results that plaintiff showed no right to recover, and that the trial judge erred in giving the affirmative charge for plaintiff. Instead, the affirmative charge should have been given for defendant, as requested.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and MILLER, JJ., concur.