Paxton v. O.P.F., Inc.

JOHNSON, Judge.

Defendant excepts to and assigns as error the trial court’s conclusion that plaintiff was entitled to recovery on a quantum meruit basis. Defendant contends that this conclusion is improper in that the theory of quantum meruit was neither pleaded by plaintiff nor tried by consent. For the court to base its judgment and award on that theory, defendant contends, was therefore both unfair and contrary to the established law in North Carolina.

Plaintiff alleged an express contract in his Complaint but the award by the court was based on quantum meruit, which was not pleaded. Quantum…