Johnson v. Lee Toma & Co.

OPINION OF THE COURT BY

HARTWELL, J.

A material question raised by the exceptions in this case is whether the action was for breach of an implied or an express agreement. At the opening of the plaintiff’s case to the jury the plaintiff in answer to the defendant’s inquiry whether he claimed that “an express contract was entered into under the terms of which one-half was to be paid to the plaintiff” said, “We are sueing on a quantum meruit.” To the defendant’s further inquiry, “And counsel states that there was an express contract entered into ?” answer was made, “That there, was an *696express…