Annotate this Case

128 S.E.2d 11 (1962)

258 N.C. 16

Graem YATES, doing business as Graem Yates Advertising, v. W. F. MICKEY BODY COMPANY, Inc.

No. 240.

Supreme Court of North Carolina.

October 31, 1962.

*13 Warren C. Stack, Charlotte, for defendant-appellant.

Robert L. Scott, Charlotte, for plaintiff-appellee.

SHARP, Justice.

Neither the pleadings nor the evidence clearly delineates this controversy. The submission of but one issue further blurred the picture and made the charge to the jury an extremely hazardous judicial operation.

The plaintiff's complaint, we believe, was intended to allege an express contract by defendant to pay $4,461.43 for the 5,000 catalogs in question. In its answer, defendant denied the contract as alleged in the complaint as well as plaintiff's performance of it. Defendant denied any agreement to pay a specific amount for the catalogs but alleged that it was ready, willing, and able to pay a reasonable sum for "proper and satisfactory catalogs." However, the most direct evidence of an express contract came from the defendant's president when he testified that the amount of the March invoice, sent at his request before the catalogs were delivered, "was justified." While alleging that "serious omissions and difficulties" in the catalogs caused it to reject 4,000 of them, defendant's evidence establishes that it did use 1,000 of the catalogs. Notwithstanding, defendant denied that plaintiff was entitled to recover any amount and excepted to the failure of the court to nonsuit plaintiff's entire claim.

Certainly the defendant was not entitled to receive the 1,000 catalogs as a gift from the plaintiff. The motion for nonsuit was correctly overruled.

*14 The plaintiff contends that the defendant ordered 5,000 catalogs; that they were printed according to specifications or "a dummy" approved by defendant's president; and that he is entitled to recover for the 5,000. If plaintiff proves this by the greater weight of the evidence, plaintiff would be entitled to recover the stipulated price if there were one; the reasonable value, if there were none. If the catalogs were not printed according to the proof, plaintiff would not be entitled to recover for the 4,000 rejected. It is implicit in the dealings between these parties that the plaintiff was to furnish catalogs according to the final proof approved by the defendant. If that proof contained page numbers and color which did not appear in the printed catalog then plaintiff did not perform his contract. If the catalogs were printed according to the approved dummy, then defendant is obligated to pay for 5,000 of them whether its president liked the finished product or not, and irrespective of whether the catalog promoted sales at the convention or elsewhere. Gills Lithographic & Liberty Printing Co. v. Chase et al., 149 Mass. 459, 21 N.E. 765, 4 L.R.A. 480; Harris v. Sharples, 202 Pa. 243, 51 A. 965, 58 L.R.A. 214. In any event, the plaintiff would be entitled to recover the reasonable value of the 1,000 catalogs which the defendant used at the Miami Convention. Thormer v. Lexington Mail Order Co., 241 N.C. 249, 85 S.E.2d 140.

The plaintiff's complaint is broad enough to support a recovery either on an express contract or on the quantum meruit. The following statement from Mcintosh, North Carolina Practice and Procedure, Second Edition, Section 1133, is applicable to the instant case:

"Under the code the complaint may allege an express contract or the allegations may be so general as, under the liberal construction rule, to allow a recovery upon either the express or implied contract. `This, however, is a slovenly mode of pleading, tolerated, but not approved, as the cases cited will show.' The orderly method of pleading would be to state the express contract and the implied contract separately, or to state the express contract as an inducement or explanation of the implied contract and that defendant received the benefits."

Before the question of damages is reached in this case it is necessary to determine whether the catalogs which the plaintiff produced conformed to the proof approved by the defendant's president. If they did, the next question is: Had plaintiff and defendant agreed upon the price? If no agreement as to price had been reached, then what was a reasonable price? If the catalogs did not conform to the printer's proof, what was the reasonable value of the 1,000 delivered?

The disputed questions of fact in this case could not have been brought into sharp focus by the one issue, "What amount, if any, is the plaintiff entitled to recover of the defendant?" Before the jury can decide the amount of plaintiff's recovery, it must resolve the issues of fact upon which that question depends. In cases where the evidence requires a charge on both express and implied contract, separate issues should be submitted. Hatcher v. Dabbs, 133 N.C. 239, 45 S.E. 562. "It is error to submit the single issue, `How much, if anything, is the plaintiff entitled to recover?' if other issues are raised, since this leaves out the controverted facts upon which the right to recover is based." Mcintosh, North Carolina Practice and Procedure, Second Edition, Section 1353. The defendant should have tendered issues applicable to its defense and noted an exception had the judge then refused to submit them. Greene v. Greene, 217 N.C. 649, 9 S.E.2d 413.

His Honor correctly charged the jury that plaintiff contended he was entitled to recover the amount of the invoice for which he sued, but he did not tell them what facts it would be necessary to find in order to return such a verdict. Likewise, he never told the jury what findings would require *15 them to answer the one issue NOTHING, but he told them the defendant contended that NOTHING should be their verdict. Having accepted and used 1,000 of the catalogs, the defendant was not entitled to this contention.

We have been unable to rationalize the theory upon which this case was presented to the jury. It may be that the court was misled by the failure of the defendant to tender issues which embraced its defense. Furthermore, the judge may have concluded that the general allegation of "serious omissions and difficulties" in the catalog was insufficient to raise an issue as to whether the printed catalog conformed to the proof. "The defendant relying on a breach by plaintiff as a defense must allege it as well as the facts constituting it, and he must deny plaintiff's allegations of due performance." 17 C.J.S. Contracts § 552. Bank of Tarboro v. Fidelity & Deposit Co., 126 N.C. 320, 35 S.E. 588. However, plaintiff makes no point that the answer was insufficient to admit defendant's evidence that the finished catalog did not conform to the proof.

The defendant assigns as error that portion of the charge in which his Honor instructed the jury as follows: "The law does not provide and does not allow this defendant to take 25% of the product and decline the other where it is shown that that rejected is the same quality as that accepted."

This was error requiring a new trial. The plaintiff knew that defendant required a certain number of catalogs in time for the Miami Convention. A thousand catalogs were printed and delivered for that specific purpose. The defendant, within thirty minutes after they were delivered, informed plaintiff that the page numbers had been omitted and asked him to stop the printing of the others. Under these circumstances, the fact that defendant in an emergency used the 1,000 catalogs would not waive his right to reject the others. Of course, the plaintiff contends that the proof which defendant had approved did not contain page numbers. This was one of the issues of fact for the jury to resolve under proper instruction from the court.

By assignments of error 20, 21, and 22, the defendant contends that the trial judge failed to apply the law to the evidence as required by G.S. § 1-180, in that he failed to instruct the jury in substance as follows:

(a) "(I)f the advertising matter was in accordance with their agreement, in the absence of stipulation as to price, the defendant was obligated to pay the reasonable value thereof;. * * *" (b) "`(P)laintiff's right to recover for materials and services rendered, not in accordance with contract, is restricted to such materials and services as were accepted and appropriated by defendant. As to these and these alone, defendant must pay, on the basis of quantum meruit; and the basis of liability therefore is quasi-contract, i. e., unjust enrichment, * * *'" (c) "`(W)here plaintiff sues to recover for services rendered to defendant, failure to prove the alleged special contract to pay therefor precludes recovery thereon; but, where services so rendered are accepted by the defendant, plaintiff may recover therefor upon quantum meruit. The measure of such recovery, predicated on implied assumpsit, is the reasonable value of the services so rendered by plaintiff and accepted by defendant,'. * * *"

The duty to give these instructions arose on the evidence in this case. Thormer v. Lexington Mail Order Co., supra. They were not given.

For the reasons stated there must be a

New trial.