
    Max Walar and Others, Copartners, Doing Business as L. Walar & Company, Appellants, v. Jacob Rechnitz, Respondent.
    Second Department,
    May 1, 1908.
    Trial — election as to ground of recovery—when subsequent recovery upon quantum meruit not barred.
    Where a plaintiff admita in open court that he sues upon a contract of sale and not upon a quantum, meruit, and the case is tried on that theory and submitted to a jury with orders to return a sealed verdict without objection and without the court compelling an election, the plaintiff cannot, on the return of the jury, object that the court erred in submitting the case only upon the theory of express contract, being bound by his voluntary election.
    
      It seems, that as the case was submitted to the jury solely upon the theory of an express contract, a judgment does not bar a subsequent action upon a quantum meruit.
    
    Appeal by the plaintiffs, Max Walar and others, copartners, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1907, denying the plaintiffs’ motion for a new trial made upon the minutes.
    
      Charles L. Apfel [Abraham B. Schleimer with him on the brief], for the appellants.
    
      Herman Joerg, for the respondent.
   Jenks, J.:

This is an appeal from a judgment upon the verdict of a jury at Trial Term in favor of the defendant and from an order denying a motion for a new trial.. The plaintiffs complained that they, at the special instance and request of the defendant, performed work, labor and service for the defendant, in altering certain build-, ings in the City of Hew York, Borough of Brooklyn, including other work, and furnished materials, for which the defendant prom, ised and agreed to pay these plaintiffs the reasonable sum of Eleven Hundred and Twenty-five Dollars and 49/100.” The answer was a denial with the admission of the payment of $150. At the opening the learned court inquired of the counsel for the plaintiff; whether their claim was upon a contractor an agreed price or upon a quantum meruit, and the counsel replied that they claimed upon a contract for an agreed price. Thereafter the case was tried and was submitted upon this theory without demur on the part of the plaintiffs and indeed with reiteration of their position. The jury was ordered to return a sealed verdict. After they had come into court with it the learned counsel for the plaintiffs was permitted to raise objections and to take exceptions for the first time that the court erred in submitting the case to the jury upon the theory of express contract alone, and in not permitting a verdict upon the theory of a quantum meruit. There is authority for the proposition that the exceptions were duly taken. (Panama R. R. Co. v. Johnson, 58 Hun, 557.) As the verdict was not rendered until presented in court to the court, this authority is sustained by the provision of section 992 of the Oode of Civil Procedure: “ An exception may be taken to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue of fact. Except as prescribed in section 1180 of this act, an exception cannot be taken to a ruling upon a question of fact. For the purposes of this article, a trial by a jury is regarded as continuing, until the verdict is rendered.” (See, too, Twaddell v. Weidler, 109 App. Div. 444; Polykranas v. Krausz, 73 id. 583.)

The court could have regarded the pleading of the plaintiff as on express contract or upon quantum meruit,'i. e., as either for the agreed price or the reasonable value. (Gardner v. Locke, 2 Civ. Proc. Rep. 252; Cassidy v. McFarland, 49 N. Y. St. Repr. 123; Marsh v. Holbrook, 3 Abb. Ct. App. Dec. 177.) It did not coerce the plaintiffs to an election, but inquired as to their theory of trial. The question presented is not whether the plaintiffs were entitled to recover upon express contract or quanlwm meruit, for that needs no discussion (Lockhart v. Hamlin, 190 N. Y. 132), or whether the court could compel them to elect, for it did not. It could not. ¡Nichols’ ¡New York Practice (Vol. 1, p. 1085) says: Thus plaintiff will not be compelled to elect between a claim for the agreed price and a claim on a quanticm meruit.” ¡But the question is whether the exceptions first raised, after the voluntary election of the plaintiffs, and continued adhesion thereto up to the time the jury retired, were well taken. That election had been sufficiently manifested. (Cunningham v. East River Electric Light Co., 60 N. Y. Super. Ct. [28 J. & S.] 282; Lockwood v. Quackenbush, 83 N. Y. 607.) In Twaddell v. Weidler (supra) the court say: “ While an exception may lawfully be taken at any time before a verdict, when taken at this time after an apparent acquiescence in the charge of the court, the exception should receive a strict construction.” I think that the plaintiffs could not then disavow their theory of the case in order to raise an exception to the course of the court theretofore taken in accord with their voluntary election and consistently adhered to until the jury had come into court agreed upon their verdict. This cáse should be disposed of by us- upon the theory of the trial. (Sears v. Wise, 52 App. Div. 118, and authorities cited.) As the case was strictly limited to the theory of an express contract between the parties, the judgment is not a bar to an action upon a quantum meruit. (Gall v. Gall, 17 App. Div. 312; Lockhart v. Hamlin, supra.)

The judgment and order is affirmed, with costs.

■ Hookeb,' Gaykor, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  