T & S INV. CO. v. COURY

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T & S INV. CO. v. COURY
1979 OK 53
593 P.2d 503
Case Number: 51715
Decided: 04/10/1979
Supreme Court of Oklahoma

T & S INVESTMENT COMPANY, APPELLANT,
v.
SAM COURY, APPELLEE.

Appeal from the District Court, Oklahoma County, Joe Cannon, J.

Certiorari to the Court of Appeals, Division No. 1.

¶0 On appeal from dismissal of suit wherein District Court of Oklahoma County, Joe Cannon, Judge, sustained defendant's demurrer to petition. Court of Appeals reversed. Appellants seek certiorari.

CERTIORARI GRANTED: DECISION OF COURT OF APPEALS VACATED: TRIAL COURT AFFIRMED.

Richard B. Bates, William J. Robinson, Oklahoma City, for appellant; Shirk, Work, Robinson & Williams, Oklahoma City, of counsel.

Wilbert G. Smith, Smith, Smith & Vaughan, Oklahoma City, for appellee.

DOOLIN, Justice:

[593 P.2d 504]

¶1 We granted certiorari to the Court of Appeals, Division 1 for the reason that Division 1 "has decided a question of substance in a way not in accord with the applicable decision of this Court", 12 O.S. 1971 Ch. 15, App. 3, Rule 3.13A(2).

¶2 The Court of Appeals decided among other matters that the limitation of 12 O.S. 1971 § 95 Second

¶3 Plaintiff filed an action to recover a share of the costs it incurred in preparing acceleration and deceleration lanes on a highway abutting both plaintiff's and defendant's properties. In its petition, plaintiff did not allege an agreement. Plaintiff's plea for recovery was based upon a theory of quasi contract. The trial court sustained a demurrer to the petition for failure to state a cause of action. The plaintiff stood on its petition and appealed.

¶4 The Court of Appeals, Division 1 held the petition stated a cause of action in quasi contract. We agree that plaintiff has stated a cause of action; however, 12 O.S. 1971 § 95 Second provides that an action upon an "express or implied" contract which is not in writing must be brought within three years. The action in this case was not brought within three years. The plaintiff contended that since a quasi contract is not based on consent or promise, it is not a true contract and, therefore, the statutory bar for actions on an express or implied contract not in writing would not apply. We disagree.

¶5 We have recognized or classified contractual relationships in three manners: (a) quasi contracts, which are commonly referred to as "implied-in-law" or "constructive" contracts: (b) implied-in-fact contract: (c) express contracts.

"`A "quasi" or constructive contract is an implication of law. An "implied" contract is an implication of fact. In the former the contract is a mere fiction, imposed in order to adapt the case to a given remedy. In the latter, the contract is a fact legitimately inferred. [593 P.2d 505] In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty.'"

¶6 Although a quasi contract is different from an implied-in-fact or express contract, it is enforceable by an action ex contractu.

¶8 OPINION OF THE COURT OF APPEALS VACATED: TRIAL COURT AFFIRMED FOR REASONS STATED.

¶9 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, BARNES, SIMMS, HARGRAVE and OPALA, JJ., concur.

Footnotes:

1 12 O.S. 1971 § 95 . Limitations of other actions.

"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: * * * * * *

Second. Within three (3) years: An action upon a contract express or implied not in writing; . . ."

2 First National Bank of Okmulgee v. Matlock, 99 Okl. 150, 226 P. 328, 332 (1924); Ward v. Archer, 173 Okl. 465, 52 P.2d 758 (1935).

3 Anderson v. Copeland, 378 P.2d 1006 (Okl. 1963); Berry v. Barbour, supra.

4 In Berry v. Barbour, supra, where plaintiff sought to foreclose a lien on defendant's property we held a quasi contract arose and that a quasi contract was sufficient to meet requirements of 42 O.S. 1951 § 141 which required improvements to be made under an "oral or written contract". C.F. Metropolitan Water Co. v. Hild, 415 P.2d 970 (Okl. 1966) where no lien attached under different factual circumstances.

5 Wagner v. Blankenship et al., 207 Okl. 471, 250 P.2d 464 (1952) where we held that one whose property has been converted may waive the tort and sue on the implied contract to pay for same. We specifically held that under such waiver 12 O.S. 1951 Second (same as 12 O.S. 1971 Second) applied. See footnote 1, supra.