
    CLIFTON v. VILLAGE OF CONSTANTINE.
    1. Trial — Instructions—Preponderance op Evidence.
    In action by contractor against village for balance claimed to be due for materials and merchandise furnished and because of variations from the contract ordered or accepted and approved by defendant, in which defendant filed cross-declaration for alleged overpayment, claimed error in instruction that plaintiff had to establish his ease by a “fair” preponderance of the evidence while defendant had duty of establishing its case by a preponderance of evidence held, without merit upon examination of charge as a whole.
    2. Contracts — Terms op Express Contract — Jury Question— Quantum Meruit.
    Where express contract is entered into, but parties differ as to terms thereof, and there is evidence tending to support claim of each, it is for jury to determine what terms of contract were, and there can be no recovery on quantum meruit.
    
    3. Same — Quantum Meruit — Express Contract.
    Refusal of court to charge jury that plaintiff could recover on quantum meruit was proper where the parties had a contract and the question of their differences as to its meaning was properly submitted to the jury, notwithstanding declaration included a quantwm meruit count.
    4. Same — Verdicts—Great Weight op Evidence — Overpayments.
    Verdict of no cause of action for either plaintiff in claim for alleged balance due for materials furnished and because of variations from the contract which had been ordered or accepted and approved by defendant village, or defendant on its claim for alleged overpayment held, not against the great weight of the evidence.
    Remedy of restitution not available when plaintiff has fully performed, see 2 Restatement, Contracts, § 350.
    Appeal from St. Joseph.; Jacobs (Theo T.), J.
    Submitted April 17, 1940.
    (Docket No. 77, Calendar No. 40,966.)
    Decided September 6, 1940.
    Assumpsit by R. F. Clifton, doing business as Clifton Engineering, against Village of Constantine, a municipal corporation, for sums allegedly due on a contract for the installation of an electrical distributing system. Cross-declaration by defendant against plaintiff for overpayments allegedly made. Verdict and judgment of no cause for action. Plaintiff appeals.
    Affirmed.
    
      Robert D. Heitsch (Alexander, McCaslin S Cholette, of counsel), for plaintiff.
    
      C. L. Stickler (D. M. Britton, of counsel), for defendant.
   Bushnell, C. J.

Plaintiff entered into a written contract with defendant village on July 2, 1937, for the construction and erection of an electrical distributing system. The contract provided for alterations and extras but required authorization therefor to be in writing and signed by a designated representative of the village. Specified items were listed at a unit and total bid price in the contract. This listing concluded with the statement “Estimated total bid price for items numbers 1 to 14, inclusive, $38,788.04.”

Payments were made from time to time as the work progressed and, after its completion, plaintiff claimed that defendant was still indebted to bim in the sum of $7,193.39 for materials and merchandise furnished and because of variations from the contract which had been ordered or accepted and approved by the village. Plaintiff’s declaration includes a quantum meruit count.

Defendant denied any indebtedness; insisted that plaintiff made a flat bid price; admitted the furnishing of extras and the completion of alterations, but claimed that they were paid for in full; and by cross-declaration insisted that plaintiff is indebted to it in the sum of $1,445.01 because of certain overpayments.

Trial was had before a jury and much testimony was taken. The court refused plaintiff’s request for an instruction on quantum meruit, and declined to submit this count to the jury, who returned a verdict of no cause of action, denying' both plaintiff’s claim and defendant’s cross-claim.

In a motion for new trial, plaintiff asserted that the verdict was contrary to law and against the great weight of the evidence; and that the court erred in charging the jury it could return a verdict of no cause of action in favor of the defendant and in refusing to charge as to qucmtum meruit. The motion for new trial was denied and plaintiff appeals.

In addition to the questions raised below on the motion for new trial, plaintiff urges that the court erred in instructing the jury that he was required to establish his case by a “fair” preponderance of the evidence, and in the same paragraph instructed the jury that the duty was upon the defendant to establish its case by a preponderance, of the evidence, without repeating the word “fair.”

An examination of the charge as a whole requires the conclusion that the jury was properly and adequately instructed. The claimed errors are' without merit.

The main question in the appeal is whether plaintiff was entitled to go to the jury on the qucmtum meruit count. Both parties tried the case on the theory that there was a contract and the issue was •whether the contract provided for unit prices or a lump sum price.

In Millar v. Macey Co., 263 Mich. 484, the court said, at page 488:

“The law in this State seems to be well settled that where an express contract is entered into between parties, but they differ as to the terms thereof, and there is evidence tending to support the claim of each of them, it is for the jury to determine what the terms of the contract were, and there can be no recovery on the quantum meruit.”

This case is cited in Vanderhoef v. Parker Brothers Co., Ltd., 267 Mich. 672, where the court said:

“There is, however, another rule of law that ah lows recovery on a quantum meruit theory where the plaintiff has performed services under an express agreement which is not enforceable because of the statute of frauds or some other statute that prevents recovery on the terms of the agreement itself. ’ ’

This is not the situation in the instant case. The parties had a contract and the question of their differences. as to its meaning was properly submitted to the jury, and the court did not err in refusing to charge that plaintiff could recover on quantum meruit.

The verdict of the jury was'not against the great weight of the evidence and there is no reversible error in the charge or in the rulings of the court.

The judgment entered upon the verdict is affirmed, with costs to appellee.

Sharpe, Chandler, North, McAllister, Wiest, and Butxel, JJ., concurred. The late Justice Potter took no part in this decision.  