
    Edwin Thacher and William Mueser, Copartners, Doing Business under the Firm Name of Concrete-Steel Engineering Company, Respondents, v. New York, Westchester and Boston Railway Company, Appellant.
    First Department,
    November 22, 1912.
    Contract — action- for services — quantum meruit — basis of action — when claim accrues — continuous employment — Statute of Frauds — limitation of actions—unliquidated damages— interest.
    Where plaintiffs in an action to recover for services as consulting engineers allege two causes of action, the first based upon an express contract with the defendant’s predecessor in interest, and the second to recover for the same services upon quantum meruit,, the contract not having been in writing and not being one to be performed within one year, the action should be treated as one upon quantum meruit.
    
    As the alleged services were performed by the plaintiffs more than six years prior to the commencement of the action their claim is barred. The terms of the alleged contract, which was void under the Statute of Frauds, cannot be considered in construing the plaintiffs’ rights in order to show that a continuous employment was contemplated and thereby avoid the Statute of Limitations:
    An action upon quantum meruit is based upon the equitablte doctrine that the defendant, 'having received the benefit, should pay what it was reasonably worth;- that the implied promise to pay became enforcible when the services were rendered and hence that the cause-of action then accrued.
    Where damages are unliquidated interest should not be added to the amount of the verdict.
    - Appeal by the defendant, the New York, Westchester and Boston Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      George S. Graham, of counsel [Graham, & L'Amoreaux, attorneys], for the appellant.
    
      Henry D. Merchant of counsel [Abel Merchant, Jr., and Alfred D. Olena with him on the brief], for the respondents.
   Clarke, J.:

The plaintiffs are copartners doing business under the name of Concrete-Steel Engineering Company. This partnership was formed early in 1901 and was'for the purpose of carrying on the business of consulting engineers. The defendant corporation is the successor in interest of the New York and Portchester Bailway Company and concededly responsible for any liability of said company established in this action.

In 1901 the Portchester company was endeavoring to obtain from the State Bailroad Commission a certificate of reasonableness and necessity in order to permit it to construct its proposed line of railway. Beinforced concrete steel construction was at that time comparatively novel in the East. Plaintiffs had had experience and were experts in such matters. The plaintiffs, at the request of the company, prepared estimates and appeared before the Bailroad Commission and testified in relation to bridges and other structures of steel concrete to be built on the proposed lines. Subsequently, they claim, they were employed to prepare plans, estimates and specifications.

The complaint sets up two causes of action. As the court charged the jury: “The first cause of action is based upon this theory: The plaintiffs claim that they had a contract with the New York and Portchester Bailroad Company * * * for the purpose of doing certain engineering work * * * and that the ultimate price fixed was 2%$ on the cost of construction, or the contract price for which the company might eventually contract for the construction of the railroad. * * * The second claim in the complaint is based upon the same work that is claimed to have been done, but it excludes the idea of a specific agreement at the rate of 2%%, and asks that it, the defendant, shall pay the faff and reasonable value of the work performed, upon the theory that the work was accepted by the Portchester Bailroad, and even if there' was not a definite, specific contract, as alleged in the first cause of action, the plaintiffs claim they are nevertheless entitled to payment, upon the theory that when a man does work for another and the latter accepts that work, a contract is implied.” The amount sued for was $50,704.37, with interest thereon from November 2, 1906.

There was direct and positive contradiction in the testimony, so much so that the court charged as follows: “You have, therefore, a clean cut' question of fact between these parties, which presents really a question of veracity, because one or the other is wofully mistaken; and I would say that it is not a case where you may throw the mantle of charity over the testimony of the parties by saying that perhaps one or the other misunderstood something. I think the differences between them as to the main issue are so clear that one or the other is deliberately falsifying. That, at least, is the way it strikes me; but I will leave all that to you.”

The learned trial court submitted five questions in writing to be answered by the jury. Those questions and their ánswers are as follows: “1. Did the New York & Portchester Bail-road Company absolutely employ the plaintiffs as consulting engineers and to supply said company with plans, specifications, estimates of cost of arch bridges, subways and concrete steel construction work suitable and proper to the railway line, route or routes under consideration by said company, at a price of 2%% of the contract price or cost of construction of such bridges, subways and constructions ? A. Yes. 2. Was it within the contemplation of the parties that the work of con- . structing the bridges, subways and concrete steel structures, as well as the making of the .plans, specifications, estimates, detail plans and giving out of contracts for construction, might reasonably have been performed within one year from the date when the alleged agreement of employment was made ? A. No. 3. Was the work alleged to have been done by the plaintiffs in 1906 upon the Harrison Avenue bridge performed upon the special request of the Portchester Bailroad Company; and if so, was it an independent contract or in part performance of the. original contract of employment alleged to have been made in 1901 ? A. By special request. 4. What is the fair and reasonable value of all the sendees actually performed by the plaintiffs, as established by the evidence? A. $12,400 and interest from February 29th, 1908 ? 5. Were the alleged services of the plaintiffs rendered upon the request of the New York & Portchester Bailroad Company and for its benefit ? A. Yes.” To this verdict $2,998.73 interest was added, and a verdict for the' plaintiff's directed for $15,398.73.

The contract not having been in writing, and being one not within the contemplation of the parties to be performed within one year, as found by the jury, the action is to be treated as one upon quantum meruit. The great bulk of the services alleged were performed and the plans, specifications and estimates furnished in January, 1903. A particular service, to wit, the making of the plans, specifications and estimates for what is known as the Harrison Avenue bridge, found by the jury to have been performed by special request, is conceded to have been done in 1906. The action was commenced by the service of the summons and complaint on March 16, 1910. Both the Statute of Frauds and the six-year Statute of Limitations are pleaded as defenses in the answer.

The appellant claims that as the jury found that the work done in 1906 was by special request it follows that for all the work done up to 1903 the Statute of Limitations has run and there can be no recovery; and that as the jury brought in a verdict for a lump sum there is no- way of determining what was allowed for the work done by special request in 1906, and, therefore, that no judgment can be predicated upon the verdict. It also claims that the action being for unliquidated damages for services rendered under the quantum meruit where the amount sued for was upwards of $50,000 and the amount found was $12,400, the addition of interest to the sum so found was error.

The respondents attempt to avoid the Statute of Limitations by claiming that under their contract a continuous employment was contemplated; that they were to furnish additional working and detailed plans from time to time, as called for, and that they were to be paid when the construction contract was let; that they were always ready, able and willing to perform and that their cause of action did not accrue under that contract until it was repudiated "or the railroad company had abandoned its work or put it out of its power to perform.

The difficulty about this claim is that this is not an action on the contract because the contract was void under the Statute of Frauds which has been invoked by the defendant; and as no recovery can be had or has been had upon the alleged contract, the terms thereof cannot be considered in construing the plaintiff’s rights. It has recovered, and can only recover, for services rendered, and the cause of action for those services accrued when they were rendered, which was more than six years prior to the commencement of the action.

It seems to us that the proposition advanced by the appellant is sound. The whole theory of allowing a recovery upon quantum meruit where the contract is found to be void under the statute, proceeds upon an elimination of the contract. There is no contract in existence to be availed of by either the plaintiff or the defendant to fix their several rights, duties or obligations. The action is based upon the equitable doctrine that the defendant having received the benefit should pay therefor what it was reasonably worth; that the implied promise to pay became enforcible when the services were rendered and hence that the cause of action then accrued.' It is true the later cases hold that the amount of remuneration provided by the alleged contract may be looked at as some evidence of the value of the services, but the jury are not bound thereby. It is admitted in evidence as in the nature of an admission as to value. If, although the statute declared the contract to be void and incapable of enforcement, it could still be made use of to fix the respective liabilities of the parties, the statute would become a nullity. The very basis of the action upon the quantum meruit is the non-existence of any express contract. In the case at bar the claim that it was a continuing contract is destroyed by the verdict that the work done in 1906 was by special request.

2. There is no way of saving this judgment upon the finding that services were rendered in 1906 by special request because there is no evidence in the case and of course no finding of the jury as to the specific value of those services.

3. In any event it was error to add interest to the amount of the verdict, because the amount of the damages was unliquidated and there was no Certain method of ascertaining the amount thereof prior to the verdict. •

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event,

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  