ON REHEARING. Upon a further consideration of this case, including the additional briefs filed by the parties, we have arrived at the conclusion that the foregoing parts of the opinion written by SPERRY, Commissioner, upon the original submission of the case, properly state the facts and declare the law relative to that part of the case covered therein, and said parts of the opinion are hereby adopted by the court. It is necessary, however, to cover certain other points not mentioned in the parts of the opinion by SPERRY, Commissioner.
We are of the opinion that the court erred in giving its Instruction No. 1, which reads as follows:
"The court instructs the jury that if you find and believe from the evidence that defendant impliedly employed plaintiff to audit the books, records and accounts of the estate of Thomas S. Moffett, deceased, and the partnership estate of Andrews, Lewis and Moffett, and if you further find that defendant agreed impliedly to pay plaintiff at the rate of Twenty-five Dollars per day, if so, and if you further find that plaintiff entered upon said work and completed the same, if so, personally or by an agent, if any, then your verdict must be for the plaintiff, and you may assess his recovery, if any, at the contract rate, if any, of Twenty-five Dollars per day, if so, multiplied by the number of days, if any, put in by plaintiff, if so, in the performance of said contract, if any. You are further instructed that the term `day' as used in this instruction means seven working hours. To the sum so computed, if any, you may, in our discretion add interest at the rate of six per cent per annum from June 29, 1931."
The amended petition, upon which the cause was tried, alleges that plaintiff, at the special instance and request of the defendant, performed the services in controversy; that he was employed by the defendant to do the work at the reasonable value thereof; that the reasonable value of the services is at the rate of Twenty-five Dollars per day; that he worked a total of 29 6/7 days and the reasonable value of the services is $746.42, for which he prays judgment.
The petition is clearly founded on quantum meruit. [McCartney v. Guardian Trust Co., 202 S.W. 1131, 1136; Macke v. Harris et al., *Page 385 27 S.W.2d 1079; 5 Houts, Missouri Pleading and Practice, p. 427, sec. 2025.] The court, in the instruction, evidently intended to submit the case to the jury upon the theory of implied contract. We are not called upon to say whether there never may be an implied contract to pay for services at the rate of so many dollars per day but we do hold that this case was not submitted to the jury upon the theory pleaded in the petition,quantum meruit. In the first place an action of that kind, strictly speaking, is not on the contract at all, but the contract merely is offered in evidence to sustain plaintiff's case, and as proof of his compliance with its terms. [5 C.J., p. 1387; Oaks v. Short, 292 S.W. 738, 740; Macke v. Harris et al.,supra, l.c. 1080.] Defendant, at the trial, neither expressly, nor by conduct, admitted that Twenty-five Dollars per day was a reasonable charge for the services claimed to have been rendered by plaintiff nor was the jury required to find, in the instruction, such a sum to be reasonable. The court should have left to the jury the question as to what would have been a reasonable compensation without mentioning, in the instruction, any sum in that connection. [28 R.C.L., p. 675.] It is always error to submit a different contract to the jury than the one pleaded. [Macke v. Harris et al., supra; McCormick v. Fidelity Guar. Co., 114 Mo. App. 460; Wade v. Nelson, 119 Mo. App. 278; Wakefield et al. v. Dinger et al., 130 S.W.2d 490.] The instruction is also erroneous in that it instructs the jury that the term "day" means seven working hours. There was oral testimony on the part of plaintiff to this effect but such testimony was not conceded to be true by the defendant at the trial. [Gannon v. Laclede Gas Light Co., 145 Mo. 502.]
The judgment is reversed and the cause remanded. All concur.