Opinion
February Term, 1891.
Contract Quantum Meruit — Evidence — Charge — Statute of Limitations — Pleadings — Amendment.
The plaintiff brought his action against the defendant for services rendered him from 1883 to 1889. Defendant pleaded the statute of limitations and a counterclaim. Plaintiff denied the counterclaim, and replied that the contract was that he was to be paid at the defendant's death, but had been dismissed from his service: Held, (1) that it was not incompetent for plaintiff to testify of the matters set up in his replication under the pleadings as they stood unamended; (2) it was not error for the court to charge that if the contract was as alleged by plaintiff in his replication, then, unless the plaintiff was willing to perform his part of it, and was prevented from so doing by the defendant, they would find plaintiff not entitled to recover; (3) that if the contract set out in the replication existed, and the plaintiff was ready to perform his part of it, his recovery was not barred by the statute of limitations; (4) that if there was no contract as to length of service or rate of payment, plaintiff could only recover for three years next preceding the commencement of the suit.
APPEAL from Merrimon, J., at Spring Term, 1891, of ALEXANDER.
R. B. Burke for plaintiff.
Jones Kerner (by brief) for defendant.
The defendant seems to have misconceived the scope (605) of the action. The court below did not "allow plaintiff to abandon his cause of action set out in the complaint and to recover on a special contract set out in the replication." The plaintiff, by his complaint, was seeking to recover the value of his services from 1881 to 1889. On the trial he abandoned any claim for services from 1881 to 1883. To this defendant did not and could not object. To prove his right to recover the value of his services from 1883 to 1889, without being subject to counterclaim for board, and to bar the application of the statute of limitations, the plaintiff introduced evidence which was also admissible to prove the allegations of his complaint. The evidence was pertinent and appropriate. It was not necessary to plead these matters of evidence in the complaint, and that the plaintiff pleaded them in his replication constituted no change or abandonment of his cause of action, which remained as before, for the recovery of the value of his services. The plaintiff did not seek, on the trial, to recover the compensation alleged to have been stipulated for in the express contract. The express contract was put in evidence merely to show why the plaintiff, by defendant's abandonment of it, could recover on a quantum meruit, and why the statute of limitations did not run. The cause of action was so broadly stated, indeed, as to have authorized a recovery by proof either on a quantum meruit or express contract. Lewis v. R. R., 95 N.C. 179. If the allegation was defective, the proper mode of correction (when the substantial facts which constitute the cause of action are stated in the complaint, or can be inferred therefrom by reasonable intendment) is not by demurrer, nor by excluding evidence on the trial, but by a motion, before the trial, to make the averments more definite by amendment. Stokes v. Taylor, 104 N.C. 394; Pom. Civ. Rem., 549; The Code, sec. 261; Moore v. Edmiston, 70 N.C. 510.
No error.
Cited: Roberts v. Woodworking Co., 111 N.C. 433; Grady v. Wilson, 115 N.C. 347; Webb v. Hicks, 116 N.C. 603; Webster v. Bailey, 118 N.C. 194; Holden v. Warren, ib., 327; Brittain v. Payne, ib., 991; Roberson v. Morgan, ib., 994; Sams v. Price, 119 N.C. 574; Beach v. R. R., 120 N.C. 507; Lucas v. R. R., 121 N.C. 508; Parker v. Express Co., 132 N.C. 130; Alley v. Howell, 141 N.C. 115; Mitchem v. Pasour, 173 N.C. 488.
(606)