#### H. G. Duncan v. J. B. Gray, Appellant.

4 Plea and Proof: contracts express and implied. Plaintiff cannot recover On a petition showing an implied promise to pay for services when it appears that they were rendered under an express agreement, and a breach thereof, which would entitle plaintiff to recover on a *quantum meruit.*

2 Instructions. An instruction which permits the jury to find on an issue not raised by the pleadings, and concerning which there is no controversy, is erroneous.

*600
      *Appeal from Franklin District Court.*— HoN. B. P. Bibd-SALL, Judge.

Wednesday, May 24, 1899.

ActioN for wages. Tbe defendant appeals from judgment on a verdict in favor of tbe *plaintiff.-*

Reversed.

*F. P. Andrews*for appellant.

*B. II. Mallory*and *JohnM. Hemmingway*for appellee.

Ladd, J.

1 2 Tbe petition simply alleged that tbe plaintiff entered tbe service of tbe defendant in May, 1896, training bis horses, and continued until July of that year, stated tbe value of bis services, and prayed for judgment. Tbe defendant answered that the services were rendered under an oral contract, by tbe terms of which tbe plaintiff’s compensation was to be one-balf of tbe earnings of tbe horses received from racing, and that tbe defendant bad complied with all tbe conditions of bis agreement. In reply, tbe plaintiff admitted tbe contract substantially as pleaded, but averred that tbe defendant bad broken three conditions: (1) bad failed to furnish an assistant to care for tbe horses; (2) bad refused to enter them at races; and (3) bad not furnished the full number. It will be observed, then, that tbe only issues to be determined were those arising out of an express oral agreement, and that plaintiff was only entitled to recover on a *quantum meruit,*in event tbe defendant failed to fulfill bis part of tbe contract. And it may be added that both parties testified to making such a contract, differing only as to details. No recovery could be bad, then, on a mere implied promise to pay. *Lines v.*Lines, 54 Iowa, 602; *Walker v. Irwin,*94 Iowa, 454; *Wernli v.*Collins, 87 Iowa, 551. Nevertheless, tbe court instructed the jury: “If you find from tbe evidence that plaintiff was requested by tbe defendant to perform tbe services sued for, and there *601was no other contract between them, and that, in pursuance of such request, he did render the services as charged, then,, of course, the plaintiff will be entitled to recover, at your hands, the fair and reasonable value of the services so rendered, as shown by the evidence.” This was emphasized by submitting whether a contract had been made, in the sixth and seventh instructions, and elaborating the law on recovery for services rendered on request, in the third paragraph of' the charge. This court has often held that instructing on an , issue not raised by the pleadings, and bearing on .which no evidence has been introduced, is error. *Storrs v. Emerson,*72 Iowa, 390; *Miller v. Railway Co.,*76 Iowa, 318; *Stein v. Seaton,*51 Iowa, 18; *Trapnell v. City of Red Oak Junction,*76 Iowa, 744; *Troughear v. Coal Co.,*62 Iowa, 576; *Wall v. Railroad Co.,*89 Iowa, 193; *Blaul v. Tharp,*83 Iowa, 666; *Whitsett v. Railway Co.,*67 Iowa, 155; *Negley v. Cowell,*91 Iowa, 257; *Stein v. City of Council Bluffs,*72 Iowa, 180; *Aznoe v. Conway,*72 Iowa, 568; *Deeds v. Railway Co.,*74 Iowa, 154. This might be urged to have been without prejudice, inasmuch as the agreement was admitted in the reply, and all parties testified to it. *But,*in spite *of*this, the court permitted, by the instruction, a finding to the contrary, and the jury might well conjecture that there was some basis for such a conclusion, else it would not be authorized. The record is such as to suggest the possibility that the privilege granted of ignoring the evidence and the issues-made by the two parties was not overlooked. — Reversed.