Mellon v. Fulton
Supreme Court of Oklahoma
Error from District Court, Oklahoma County; B. F. Burwell, Judge. Action by M. Fulton against T. P. Mellon. Judgment for plaintiff. Defendant brings error.
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Error from District Court, Oklahoma County; B. F. Burwell, Judge. Action by M. Fulton against T. P. Mellon. Judgment for plaintiff. Defendant brings error. On February 12, 1904, M. Fulton, defendant in error, plaintiff below, sued T. P. Mellon, plaintiff in error, defendant, below, in the district court of Oklahoma county, on open account for professional services rendered in the sum of $782'.90, a copy of which is filed with, his petition, wdiich contains two counts, the first being upon an express contract and the second upon quantum meruit. On May 7, 1904, defendant filed motion to require…
1Opinion of the CourtTurner, J.
(after stating the facts as above). The first error assigned is that the court erred in overruling the motion to require plaintiff to elect upon which cause of action stated in his petition he would stand. It is urged in support of this contention that, as the first count declares upon an express contract and the second upon a quantum meruit, they are inconsistent, and for that reason the court should have required the election. We do not think so. It is a familiar rule of pleading that when the plaintiff has two or more separate reasons for the obtainment of the relief sought, or when there…
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