
    Johh Donovan, Respondent, v. Mary W. Harriman, as Executrix, etc., of Edward H. Harriman, Deceased, Appellant.
    First Department,
    July 7, 1910.
    Pleading — complaint — amendment to allow recovery on quantum meruit — when such recovery inconsistent with contract alleged — disability of plaintiff as witness.
    In an action on an express contract whereby the defendant’s testator, in consideration of services rendered by the plaintiff, agreed to pay him one-fourth of such sums as the testator might realize from the sale of certain railroad stocks, or the same proportion of the sums he might realize on a reorganization of the railroad company, the plaintiff will not be allowed to amend the complaint so as to recover on a quantum, meruit.
    
    This, because in an action on a contract a recovery on quantum, meruit is allowed only where it is consistent with the contract' alleged, and the contract aforesaid ■ is inconsistent with such recovery, as it would involve the proof of a contract materially different from that made by the parties.
    Such amendment will not be allowed, although the plaintiff is unable to prove the express contract alleged owing to his disability as a witness caused by the death of the defendant.
    Appeal by'the defendant, Mary W. Harriman, as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th'day, of April, 1910, granting the plaintiff leave to serve an amended complaint.
    
      
      Alfred Jaretzki [Francis D. Pollak with him on the brief], for the appellant.
    
      Henry M. Earle [John Ingle, Jr., with him on the brief], for the respondent.
   Laughlin, J.:

The. action was originally brought against Edward H. Harriman • on an express contract between him and the plaintiff resting in parol, by which the plaintiff undertook, as he alleged, to abandon all connection with a project to construct and operate a certain interurban railway between the city of St. Joseph and the city or town of South St. Joseph, in the State of Missouri, and to use and devote his time, labor, influence and services, so far as might be necessary and proper, in co-operation with the president and other officers” of another interurban electric railway about to be built between said points, of which Harriman was the owner of all or a greater part of the capital stock, and “ to the development arid extension of the interests, business and welfare ” thereof until Harriman should dispose of his stock" therein. It was further alleged that the original defendant in consideration of the premises set forth in the complaint, promised and agreed to pay to the plaintiff one-fourth of such sums as he might realize from a sale of his said stock, or such sum as he might receive from any reorganization of said corporation, over and above the amount expended by him in acquiring the stock. It will thus be seen that the original complaint was not to recover for the value of services' on an express contract to pay their agreed value in any event, but was on a contract by which the plaintiff was to recover for severing his connection with the other contemplated street railway and for services rendered to Harriman, only in the event that the latter sold his stock in the company in which he was interested at a profit, or obtained a profit thereon on a reorganization of the corporation and in that event the plaintiff was to receive one-fourtli of the profit. The plaintiff also served a bill of particulars in which he stated that the contract was jiot in writing; that he personally negotiated it with Harriman and that its terms were as alleged in the complaint. Harriman by his answer put in issue the material allegations of the,complaint. By the death of Harriman the plaintiff became an incompetent witness to prove the contract, and. after the substitution of the executrix as defendant this motion was made for leave to amend the complaint by alleging a cause of action on a quantum meruit for said services. If Harriman had lived and the case had'been tried on the original complaint and the plaintiff bad-proved-the express contract and failed to show" profits, a percentage of which he was entitled to recover, it is manifest that he could not have recovered on a quantum meruit. The theory upon which in an action on an express contract for services a recovery is allowed for the value of the services in the event that the plaintiff is unable to prove an express agreement with respect to such value, is that a recovery bn the theory of a quantum meruit is entirely consistent with the ■ complaint which is based upon the same services and tó recover not their actual value but the value agreed upon by the parties. . When, in such case, it appears that the parties did not agree upon the value of the. services, then to obviate another action On the same facts and evidence the plaintiff ' is permitted to recover their actual value. In the case at bar, however, to permit the plaintiff to recover for,the actual value of the services rendered would be to make- a new and materially different contract for the parties, which on the plaintiff’s own theory of the ■ case, as shown by his original complaint, was not contemplated. It is not shown that the plaintiff was mistaken with respect to the terms of the contract, as he alleged it in-his original complaint and in the bills of particulars during Harriman’s lifetime. He should, therefore, be bound by the contract as originally alleged by him aiid he should not be permitted to recover on a quantum meruit. It may well be that if he were a competent witness to establish his contract as originally pleaded, he could show a profit and would be entitled to recover, but his disability as a witness is his misfortune and does' not justify an amendment of the complaint under which he cotild recover the actual value of his services even though the decedent - did not sell or dispose of his stock at a profit.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Soott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten. dollars costs.  