Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
The amount in controversy on this appeal is only $250 but acceptance of the implications of defendant's arguments in support of a reversal, advanced with some color of authority in two recent Supreme Court opinions, would threaten marked retrogression in the application of R.R. 4:8-5(b), permitting the statement of inconsistent and alternative claims in a pleading.
The action was brought in the Essex County District Court and the complaint is in two counts. The first alleges an agreement pursuant to which plaintiff was to do certain carpentry work for the defendant upon designated real property at a price of $420; that plaintiff rendered services pursuant to the agreement from October 28, 1955 until November 4, 1955 when he quit upon being advised by defendant that he would pay only $120 for the work. Judgment therefore is demanded in the sum of $420. The second count is "for the reasonable value of work, labor and services performed on behalf of the defendant," in the sum of $276.
Plaintiff testified he negotiated the agreement with defendant's father, an admitted agent, for $140 per bathroom, or a total of $420 (for three rooms), subsequently
reduced to $400. Proofs adduced by defendant were to the effect that the price for the entire job was to be $140, later reduced to $120. The value of the work actually done by plaintiff and a helper was disputed but plaintiff offered evidence supporting a value of $276. The basis for the parties' misunderstanding is obvious. The trial judge, sitting without a jury, found as a fact "that there was no meeting of the minds with respect to the price of the work to be performed." He went on to determine that, "neither side having sustained the burden of proof in this respect * * * no contract, in fact, existed between the parties" and judgment was entered for plaintiff for $250 "on the basis of quantum meruit."
Defendant made motions at the beginning and end of the trial to compel election by the plaintiff as between the two counts but the trial court did not rule upon them. Neither of these rulings is expressly made a point of appeal.
Defendant makes three points in contending for a reversal: (1) having pleaded an express contract plaintiff cannot recover in quantum meruit; (2) having offered proof only of an express contract and relied thereon through the trial it cannot have recovery in quantum meruit; (3) the ruling of the court improperly shifted the burden of proof to the defendant. We consider these contentions in the order stated.
Long before the adoption in this State of the new practice rules in 1948 the principle of pleading alternative and inconsistent claims was well known to New Jersey practice both at law, Harris, "Pleading and Practice in New Jersey" (rev. ed. 1939), § 333, p. 338; S.C.R. 53 (1938); and in Chancery, Chancery Rule 53. See Tentative Draft Comment on proposed Rule 3:8-5(b), now R.R. 4:8-5(b), Schnitzer and Wildstein, N.J. Rules Service, A-IV -165 to 168. Pleading both an express and an implied contract in reference to the same transaction is commonplace throughout the country under statutory provisions and independently thereof, 17 C.J.S., Contracts , § 569, p. 1205, and it was familiar practice in this State even prior to 1948, Fiedler
Corp. v. Manufacturer's Development Co. , 108 N.J.L. 364 (E. & A. 1932), where the court said (at page 367): "The plaintiff was entitled to base its right of recovery on the alternative theories asserted. Recovery was not sought on both but on one or the other. This is proper under the Practice Act (rule 37)."
Modeled upon Federal Civil Rule 8(e), 28 U.S.C.A., R.R. 4:8-5(b) provides:
"(b) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. * * * A party may also state as many separate claims or defenses as he has regardless of consistency ...