Summary
In Sammon v. Roach, 211 Iowa 1104, 1105, 235 N.W. 78, 79, cited by appellant, "the compensation was, in each instance, fixed absolutely by the several contracts."
Summary of this case from Finkle v. FinkleOpinion
No. 40647.
February 17, 1931.
LIMITATION OF ACTIONS: Statute of Limitation — "Continuous, 1 Open, Current Account" Defined. A series of independent express contracts for services to be performed for an agreed compensation does not constitute a "continuous, open, current account."
PLEADING: Issues, Proof, and Variance — Pleading Quantum Meruit
and Proving Express Contract. quantum meruit
Appeal from Madison District Court. — E.W. DINGWELL, Judge.
Action upon an alleged account, to recover a balance due for work and labor. A jury was waived, and the case tried to the court. Judgment for the plaintiff, and the defendant appeals. — Reversed.
Percival Wilkinson, for appellant.
C.E. Hamilton, for appellee.
The cause of action stated in the petition is upon quantum meruit. An itemized statement showing debits and credits is attached thereto. The answer of appellant admitted the services, alleged settlement, and payment in full, and also set up the statute of limitations. The finding of the court, sitting as a jury, upon all questions of fact, as distinguished from purely legal conclusions, is binding upon this court. Therefore, questions of law only are presented for decision.
Testifying in his own behalf, appellee said that he hired himself to appellant on or about April 3, 1916, to work for him on a farm for seven months at $30 per month; that he then worked for appellant for three months, at an agreed compensation of $35 per month; and that, during the remainder of the time, which included several years, he was employed at an agreed compensation of $50 per month. This testimony is not denied, but, on the contrary, is corroborated by the appellant.
At the close of appellee's testimony, appellant moved the court to require the plaintiff to elect whether he would prosecute his action upon contract or quantum meruit. He elected to stand on the account as pleaded. Recalled, he testified to the reasonable value of his services. Another witness, whether called by appellant or appellee does not appear, testified that ordinary wages were, during the period covered, around $40 to $50 per month. The court specifically found against appellant on the issue of payment, and also that the account was open and current, and, therefore, not barred by the statute of limitations. The court also found the reasonable value of the services, with one exception, to be as agreed upon between the parties.
As indicated, the petition of appellee contains but a single count, and that is based upon quantum meruit. The court found and held that the action was to recover a balance due on an open, continuous, current account. It is the 1. LIMITATION contention of appellant that this finding is OF ACTIONS: erroneous, and contrary to the undisputed statute of evidence in the case. Appellee was employed by limitation: appellant under a series of express contracts: "continuous, that is to say, the term of each employment was open, either definitely expressed or clearly current understood by the parties, and the compensation account" was, in each instance, fixed absolutely by the defined. several contracts. Nothing was left by the parties to implication. A continuous open account is one that includes a series of items. The term has been often defined, and we shall content ourselves with the citation of the authorities, without repetition of what has previously been said. Tucker v. Quimby, 37 Iowa 17; Wertz v. Ryan, 192 Iowa 517; McCord v. Page County, 192 Iowa 357; Spencer v. Sowers, 118 Kan. 259 ( 234 P. 972, 39 A.L.R. 365); Connor Livestock Co. v. Fisher, 32 Ariz. 80 ( 255 P. 996, 57 A.L.R. 196).
A series of independent express contracts for services to be performed for an agreed compensation does not constitute an open, continuous, current account. Authority bearing directly upon this point is not plentiful in this state; but this 2. PLEADING: court, in Shorick v. Bruce, 21 Iowa 305, held issues, specifically, under a similar situation, that proof, and the case did not involve a continuous current variance: account. This would seem to be clear upon pleading reason, and without the necessity of authority quantum to support it. The rule is well settled in this meruit and state that, where a cause of action is based proving solely upon quantum meruit, recovery cannot be express had if the proof offered in support thereof contact. establishes an express contract. It is equally true that, if the cause of action is based upon contract, recovery may not be had upon the theory of quantum meruit. Duncan v. Gray, 108 Iowa 599; Hunt v. Tuttle, 125 Iowa 676; Walker Davis v. Irwin, 94 Iowa 448; In re Estate of Oldfield, 158 Iowa 98; Bierkamp v. Beuthien, 173 Iowa 436; Murphy v. Williamson, 180 Iowa 291; Cammack Son v. Weimer, 181 Iowa 1; Goben v. Des Moines Asph. Pav. Co., 208 Iowa 1113; Russell v. John Clemens Co., 196 Iowa 1121.
Counsel for appellee relies primarily upon Mills Co. v. Davies, 42 Iowa 91; Haywood v. Woods, 28 Iowa 563; Shorick v. Bruce, supra; Kilbourn v. Anderson, 77 Iowa 501; Wendeling v. Besser, 31 Iowa 248. None of the foregoing cases are in point, as a casual reading thereof will show. The full term of employment of appellee under the several contracts was continuous from April 16 to September 1, 1921. The number of contracts actually entered into during this period is wholly immaterial. The decisive factor in the case is that all of the services were performed and rendered under express oral agreements, specifically fixing the compensation to be paid. The fact that the action is to recover a balance due is not, in itself, determinative of any controverted question in the case. The record does show that appellant made payments at irregular intervals, but they were all made in pursuance of existing contracts. If appellant failed to make payments monthly, as agreed, a cause of action arose immediately in favor of appellee. The failure of appellant to make prompt monthly payments, if such was the understanding and agreement of the parties, appears to have been mutually waived, or, at least, appellee did not insist thereon. Appellee was given the opportunity, during the trial, to elect whether he would rely upon express contract or quantum meruit. He chose the latter, and no amendment to the petition was tendered. The difficulty encountered by appellee at this point was obviously the statute of limitations.
It is our conclusion that there was a fatal variance between the allegations of the petition and the proof, and consequently the petition should have been dismissed. — Reversed.
FAVILLE, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur.