213 P. 799 | Mont. | 1923
delivered the opinion of the court.
The plaintiff filed his complaint against the defendant to recover the sum of $867, alleged to be due him as a balance for work and labor performed for defendant between October 5, 1919, and July 17, 1920, at the rate of $35 per week. The complaint contained two counts, the first being upon an express contract and the second upon quantum meruit.
The defendant answered, admitting that plaintiff had rendered the services alleged, but claimed that the agreed wage was $60 per month, all of which had been paid, and also set up two counterclaims against the plaintiff, the first of which was for board and lodging alleged to have been furnished to the plaintiff’s family between January, 1916, and March, 1920, amounting in all to $360; the second being for the sum of $81.35 on account of goods, wares, and merchandise alleged to have been sold and delivered to the plaintiff by the defend7 ant between October 8, 1919, and July 17, 1920.
Issue was joined on the counterclaims by plaintiff’s reply. The cause was tried to a jury and resulted in a verdict and
Although specifications of error Nos. 1, 3, and 4 are wholly insufficient under Rule X of this court (64 Mont, lxviii, 202 Pac. x), and consequently not entitled to any consideration, all the matters therein suggested are covered by a consideration of specification No. 2, which is in effect that the court erred in denying defendant’s motion to require the plaintiff to elect upon which count of his complaint he would rely. This motion was made during the progress of the trial, and at the close of all the testimony the same was denied.
The rule is that in a case of this kind, when there is more or less uncertainty as to the grounds of recovery, there may be properly joined a count upon express contract and a count upon quantum meruit (Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035; Neuman v. Grant, 36 Mont. 77, 92 Pac. 43), and that where, as in this case, application is made during the course of the trial to require the plaintiff to elect upon which count he will rely, the question of granting or overruling the motion is addressed to the sound legal discretion of the court. (Mellon v. Fulton, 22 Okl. 636, 19 L. R. A., (n. s.) 960, 98 Pac. 911; Manders v. Craft, 3 Colo. App. 236, 32 Pac. 836; Wagner v. Nagel, 33 Minn. 308, 23 N. W. 308.) The record here wholly fails to show any abuse of discretion on the part of the court in refusing to require the plaintiff to elect, and there was no error in doing so.
Finally, the defendant contends that the verdict of the jury was not justified by the evidence. In answer to this it is sufficient to say that there was no controversy concerning the length of time plaintiff was employed by the defendant. The plaintiff testified that there was an agreement with the defendant by which he was to receive $35 per week for his services. Defendant denied this, and testified that the agreement was that the plaintiff should have $60 per month for his
As to defendant’s counterclaims, the testimony was equally conflicting. All of these matters were submitted to the jury for determination, and their verdict was well within the range of the evidence and cannot be disturbed on this appeal. (Williams v. Gray, 62 Mont. 1, 203 Pac. 524; Kamboris v. Chicago, etc., Ry Co., 62 Mont. 88, 203 Pac. 859.)
No error appearing in the record, the judgment and order appealed from are affirmed.
Affirmed.