Fells v. Vestvali

2 Keyes 152

Opinion

Davis, J.

There was no error committed by the court at the trial. On the question of joint liability of defendants the evidence was conflicting but by no means conclusive on either side. The plaintiff - gave enough evidence tending to prove a joint employment to entitle him to go to the jury on that question. It was not the duty of the court to do otherwise than submit the question as one of fact to the jury; and there is no complaint but that this was fairly done. •

On the issue as to a settlement between the parties the same remarks are applicable. The conflicting evidence presented no legal proposition for the determination of the court, , and the court charged the jury that the question whether there had'-'been a final settlement between the parties was one for them to determine upon the evidence before them.

The other proposition, to wit, whether there could be a recovery under a complaint on a quantum meruit where the proof tended to show an express contract at a fixed price, was, under the evidence in this case, wholly destitute of merit. If the plaintiff was entitled to recover at all, it was on the ground that the services had actually been rendered; and after the complete performance of an express contract there is no reason why a recovery may not be had under this form of pleading. The only effect in such a case of proof of an express contract fixing the price is, that the stipulated price becomes the “ quantum meruit ” in the case. It is not a question of variance, but only of the mode of proof of the allegations of the pleading.

There were, therefore, no grounds for this appeal and the judgment should be affirmed.

All concur.

Affirmed.