#### Jacob Rubin and Joel Rubin, Appellants, *v.*Barney Cohen, Respondent.

First Department,

December 24, 1908.

Contract — work and materials — pleading — election between action on contract and on quantum meruit.

The complaint in an action on contract need not state whether it is oral or written, but general allegations of the contract, the consideration, performance, breach and indebtedness are sufficient.

Under a declaration on a special contract for services, if the proofs fail to establish the same, but do show that services were rendered, a recovery may be had upon a *quantum, meruit.*So, too, in an action on *quantum meruit*for services, a specific contract fixing the price may be proved to show the value of the services.

Where an express contract not under seal has been fully performed, except the payment of the consideration, a plaintiff need not declare specially on the contract, but may recover upon the implied promise of the defendant to pay the stipulated price.

A complaint in an action for services or materials furnished, or for goods sold, L which alleges both value and agreed price, does not state two causes of action, and even where it contains two counts for the same services, one on special contract and the other on *quantum,*meruit, the plaintiff should not be compelled in advance of trial to elect upon which count he will proceed.

Where a complaint pleads an agreed price, an allegation of value will be treated as surplusage rather than as an attempt to state two causes of action.

So, where a complaint sets forth three separate causes of action for work performed and materials furnished “of the fair and reasonable value and at agreed prices ” aggregating a specified sum, and plaintiff in a subsequent bill of particulars sets forth that a part of the amount claimed in the first and second causes of action is due by reason of a written contract, he cannot be compelled on the opening of the trial to elect as to whether he will proceed on *quantum meruit*or special contract. Having been obliged to do so and, therefore, being unable to give his evidence, a judgment dismissing the complaint as to the first two causes of action will be reversed, as well as a judgment in favor of the defendant on the third cause of action.

Appeal by the plaintiffs, Jacob Rubin and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of November, 1907, upon the dismissal, by direction of the court, of the first and second causes of action alleged in the complaint, at the close of the plaintiffs’ case, and upon the verdict of a jury on the third cause of action, and also from an order entered in *396said clerk’s office on the 22d day of November, 1907, denying the plaintiffs’ motion for a new trial made upon the minutes.

*Jacob*Manheim, for the appellants.

*Moses Feltenstein,*for the respondent.

Houghton, J.:

The action is for work performed and materials furnished. The complaint sets forth three separate causes of action and in each count the work and materials are alleged to have been performed and furnished at defendant’s request “ of the fair and reasonable value and at agreed prices” aggregating, a specified sum. The answer admitted that the plaintiffs performed certain work for the defendant, but alleged that it was done in pursuance of two building contracts entered into in writing, copies of which were annexed to the answer, which plaintiffs failed to fully perform, for which failure defendant set up various counterclaims. for damages. The plaintiffs served a bill of particulars at defendant’s demand which showed that some of the material claimed to have been furnished and work performed was pursuant to a written contract and some outside of any written contract.

At the opening of the trial defendant moved that plaintiffs be compelled to elect as to whether they intended to proceed on *quantum menoit*or special contract. The ground of this motion was stated to be that the bill of particulars set forth that a portion of the amount claimed in the first and second causes of action was due by reason of a written contract, and the defendant insisted that he should be apprised as to whether the plaintiffs were claiming on the theory of performance of the written contract or upon *qua/ntum meruit*for the work actually performed because the defendant had prevented completion of the contract. After considerable colloquy, during which the plaintiffs claimed that they had a right to show what materials wmre furnished and what work was done, and that either the price was agreed upon by the written contract or verbal if it was outside the written contract, and if the causes of action were based upon agreed prices whether in writing or not, and that they were not compelled to plead a written contract as such, but could introduce it under the general allegation of the making of an *397agreement, the court finally compelled the plaintiffs as to the first and second causes of action to elect upon which they would proceed, and they elected to proceed on agreed prices, waiving their allegations as to value. Thereupon the plaintiffs proved the execution of the two contracts and offered them in evidence, and on the objection of the defendant that they were not pleaded they were excluded. The plaintiffs then sought to prove work which they did and materials which they furnished for the defendant, and on defendant’s objection that the contract was the best evidence of what was to be done and furnished, and how it was to be done, that class of evidence was excluded.

The plaintiffs made various efforts in various ways to introduce their proof, and finally, on motion of the defendant, the complaint was dismissed as to the first and second causes of action, and the trial proceeded upon the third count and resulted in a verdict for the defendant on that cause of action. The plaintiffs having sued upon contracts, it was not necessary' for them to plead whether they were oral or written. A general allegation of contract, with good consideration, performance, breach, and indebtedness, was sufficient. *(Matthews*v. Matthews, 154 N. Y. 288, 292; *Miller*v. *Munroe,*59 App. Div. 623.) With respect to services performed and materials furnished, it has become the settled law that under a declaration on a special contract, if the proofs fail in establishing such contract, but do in fact show a rendition of services, a recovery may be had upon a *quantum meruit. (Shirk*v. *Brookfield,*77 App. Div. 295.) Likewise, it is also settled that in an action for services on *quantum meruit*a specific contract may be proved fixing the price, and the price so specified then becomes the value. *(Ludlow*v. *Dole,*62 N. Y. 617; *Fells*v. *Vestvali,*2 Keyes, 152; *Higgins*v. *Newtown & Flushing R. R. Co.,*66 N. Y. 604; *Boyd*v. *Vale,*84 App. Div. 416.) Where any express contract not under seal lias 'been fully performed and nothing remains to be done except to pay money in consideration of such performance, a plaintiff need not declare specially on the contract, but may count upon the implied assumpsit of the defendant to pay him the stipulated price. *(Farron*v. *Sherwood,*17 N. Y. 227; *Hartley*v. *Murtha,*5 App. Div. 408.) In actions for services or for materials furnished, or for goods sold, it often happens that the complaint alleges both value and *398agreed prioe. Such an allegation does not state two causes of action for the defendant may have specially agreed to pay the market value.

In view of the fact that it is permissible to sue for services under a special contract, and if that is not proved recover upon *quantum*meruit, it has been repeatedly held, even where the complaint contains two counts for the same services, one under special contract and one on *quantum*meruit, that the plaintiff should not be compelled on motion in advance of the trial to elect upon which count he will proceed. *(Longprey*v. *Yates,*31 Hun, 432; *Blank*v. *Hartshorn,*37 id. 101; *Goetz*v. *Van Au,*12 Civ. Proc. Rep. 104; *Seymour*v. *Warren,*71 App. Div. 421.)

Where a complaint manifestly pleads a specifically agreed price, an allegation of value will be treated simply as surplusage rather than as an attempt to state two causes of action, where the market value does not appear to have been the specially agreed price. (*Vedder*v. *Leamon,*70 App. Div. 252; *Keister*v. *Rankin,*29 id. 539.)

Under these rules, which we have been at some pains to formulate because of the frequency of actions of this character, it is clear that the learned trial court erroneously excluded the written contract and erroneously refused to receive plaintiffs’ evidence as to performance. Quite probably he had in mind the necessity of suing upon *quantum meruit*for work performed and materials furnished upon a contract which had not been entirely performed, completion of which had in some way been prevented. There is nothing in the complaint, however, warranting such an assumption, and the plaintiffs should have been permitted to develop their causes of action.

The jury rendered a verdict for the defendant upon the third cause of action. Under the circumstances disclosed, and in view of the "erroneous course pursued at the trial, we think in furtherance of justice a new trial should be granted as to the third cause of action as well as to the first and second.

The judgment and order must be reversed and a new trial granted, with costs to the appellants to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to abide event.