82 N.J.L. 650 | N.J. | 1912
The opinion of the court was delivered by
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
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
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
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.