Jenkins v. Duckworth & Shelton, Inc.

89 S.E.2d 471 (1955)

242 N.C. 758

Arthur M. JENKINS and Charles J. Henderson v. DUCKWORTH & SHELTON, Inc.

No. 249.

Supreme Court of North Carolina.

October 19, 1955.

*472 David H. Armstrong, Troy, and J. F. Flowers, Charlotte, for defendant, appellant.

Covington & Lobdell, Charlotte, for plaintiffs, appellees.

PARKER, Justice.

Both causes of action in the complaint are based upon the same express contract of employment. The answer admits an express contract of employment, the successful performance of the employment, and the expectation of paying a reasonable fee, the amount of which had not been agreed upon.

There is no question of an implied contract. There can be no implied contract where there is an enforceable express contract between the parties as to the same subject matter. McLean v. Keith, 236 N.C. 59, 72 S.E.2d 44; Lawrence v. Hester, 93 N.C. 79; 17 C.J.S., Contracts, § 5. Cases relied upon by defendant are concerned with allegations of an express contract and an implied contract, and are not applicable.

"The general rule, which is subject to some qualification under statutes, is that the statement of the same cause of action in different ways or forms, each in a separate count, so as to meet different possible phases of the evidence as it may be developed at the trial, or different possible legal views, is permissible." 71 C.J.S., Pleading, § 88, p. 215. See: 41 Am.Jur., Pleadings, p. 318.

"The plaintiff can unite two causes of action relating to the same transaction and have alternative relief." Herring v. Cumberland Lumber Co., 159 N.C. 382, 74 S.E. 1011, 1013, 42 L.R.A.,N.S., 64.

The law in this jurisdiction does not compel the plaintiffs here to elect at their peril, between their two causes of action stated in different ways. They may assert both, leaving it to the jury or court to say which they are entitled to.

The ruling of the court below is

Affirmed.

WINBORNE, J., took no part in the consideration or decision of this case.