
    35563.
    THOMAS McDONALD CORPORATION, transferee, v. BROUGHTON et al.
    
    Decided April 25, 1955.
    
      
      Saul Blau, Charlie Franco, for plaintiff in error.
    
      Margaret Hopkins, Frank W. Brandon, contra.
   Quillian, J.

The plaintiff (plaintiff in error here) expressly abandoned all of the grounds of its motion for new trial except that the verdict was without evidence to support it. The ground is without merit; there was sufficient evidence to authorize the verdict—indeed, the verdict was demanded by the evidence. The plaintiff pleaded as a cause of action a joint agreement of the defendants to pay commissions for certain services alleged to have been rendered by its transferor to them all. Their proof tended only to show several agreements of the defendants to pay commissions for these services. It is elementary that one contract cannot be declared upon and recovery had on proof of an entirely different contract or contracts.

The motion for a judgment notwithstanding the verdict is predicated upon the contention that the plaintiff was entitled to recover on a quantum meruit. Suit cannot be brought for the breach of a contract and recovery be had on the quantum meruit. The court did not err in denying the motion for a judgment notwithstanding the verdict.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.  