dissenting.
The original petition in this case was the usual one for services on quantum meruit. It was superseded by the amended petition, which still embodied all that was contained in the original petition, setting up plaintiff’s claim under an implied contract and then, proceeding further, sought in payment for the same services to show an express contract for the transfer and delivery of certain bank stock, and prayed in the alternative, first, for the delivery of that stock; or, if that could not be had, for a judgment for the value of the stock, and, if that could not be had, for the value of the services rendered on a quantum meruit.
It. will be seen that the new matter in the amended petition is not in explanation or in furtherance of that contained in the original petition, but is actually inconsistent with it. If plaintiff had an excess contract for this bank stock in payment for her services, she had no implied contract for $7 per day, or whatever their value might be. In Creighton v. City of Toledo, 18 Ohio St., 447, the first paragraph of the syllabus is as follows:
“Where there is an express contract between parties none can be implied. The maxim expressum facit cessare taciturn applies in such cases.”
And on page 451, in its opinion, the court say:
“The plaintiff’s right to recover is not founded *451üpon a quantum meruit, but solely upon an express contract, which provides a stipulated mode of payment, and thus excludes the idea of a recovery upon an implied assumpsit. Where there is an express contract between parties, none can be implied; the maxim expressum facit cessare taciturn applies in such cases.”
And in Crist v. Dice, 18 Ohio St., 536, in the opinion of the court, page 542, the following language is used: “No implied obligation, inconsistent with the actual agreement, can arise, * * * for ‘expressum facit cessare taciturn.’ ”
The allegations of the express contract and the implied contract in the same petition are inconsistent. They are in no sense the same, but are repugnant to each other. They do not constitute two separate causes of action, but are two distinct causes of action pleaded together in the alternative, and relief under one cause of action would prevent the obtaining of it under the other. -Plaintiff being uncertain as to which cause of action she might be able to prove and maintain, out of abundance of caution pleaded them both in the one amended petition. And they were both met by distinct denials.
As to the cause of action under the unexecuted codicil for an express consideration, the defendant interposed the bar of the statute, both that the action had not been begun within six months .after its rejection under Section 10722, General Code, nor within two years after the appointment, under Section 10746, General Code.
I concur with the majority of the court that these sections both constituted a complete bar. *452Shahan, Exr., et al. v. Swan, 48 Ohio St., 25; Delaplane v. Smith, 38 Ohio St., 413; Pollock, Exr., v. Pollock, 2 C. C., 140.
The only recovery would therefore be sustained under an implied contract, as set out in the original petition.
In my opinion there was no consideration given by the court below to the claim under the implied contract, nor any determination by it as to the value of the services rendered or the amount which plaintiff was entitled to receive for same. On the contrary, the court below found that plaintiff was entitled to recover as damages the value of the bank stock which had not been delivered to her in accordance with the agreement which she was barred by the statute from setting up in this case. To my mind this is clear from the words alone of the judgment, and becomes doubly so when we refer to the language of the court below in its opinion as reported in Sellers v. Sayler, Exr., 14 N. P., N. S., 1. The judgment below was based upon the finding of the court made in the following language:
“This cause having heretofore been heard upon the pleadings and evidence and submitted to the court, the court upon consideration thereof find the issues joined in favor of the plaintiff, and that the facts stated in her amended petition are true.
“The court further find that the estate of Asa Van Wormer is liable in damages for the value of the stock not delivered to the plaintiff in accordance with the agreement in the amended petition set forth, and that therefore there is justly due and owing to the plaintiff from the defendant John R. Say*453ler, executor of the last will and testament of Asa Van Wormer, deceased, upon the cause of action set forth in the amended petition, the sum of $35,250 and that the plaintiff is entitled to have said sum paid to her out of the personal property belonging to the estate of the said Asa Van Wormer,” etc.
Surely this judgment must be read as an entirety, and it will not do to simply rely upon the general language of the first paragraph of the finding and from it determine that the court below had necessarily found upon the claim based upon the implied contract for a quantum meruit.
It is true that the language states that the court upon consideration of the pleadings-and the evidence “find the issues joined in favor of the plaintiff, and that the facts stated in her amended petition are true.”
If this language is to be construed as broadly as it has been by the majority of the court, then it necessarily means that the court below found that the express contract to pay bank stock for services had been established, and that the implied contract to pay the reasonable value for the same services had also been established. These two findings are absolutely inconsistent, and this is shown conclusively, to my mind, by the specific language which follows, wherein the court finds “that the estate of Asa Van Wormer is liable in damages for the value of the stock not delivered, to the plaintiff in accordance with the agreement in the amended petition set forth, and that therefore there is justly due and owing to the plaintiff,” etc.
*454Construing these two paragraphs together shows specifically which one of the two inconsistent causes of action put in the alternative in the amended petition was found in favor of the plaintiff to be true. And the value of this stock, as fixed by the testimony of the witnesses, shown in the record, is the amount for which the judgment was entered.
In other words, the cause of action which has been barred is used as a basis for the foundation of the judgment below. While it is true that there is sufficient evidence shown in the record to have enabled a jury or court on submission to determine the value of the services rendered by plaintiff in her action on an implied contract for the value of such services, the record fails to show any consideration of that evidence for the purpose of fixing such value. It will not do to say that the unexecuted codicil furnishes in itself a basis of value, as it is eliminated from the case, as we have seen, by reason of the bar of the two statutes above mentioned except in so far as it might furnish evidence that the decedent recognized some obligation, whether as a legal liability or as a moral duty.
This paper is not contractual in its form, but is of a testamentary character. The record shows that testator was constantly considering how he’ should dispose of his large fortune, and it is but natural that plaintiff should have been considered among others as well worthy of his. benefaction. The testimony of James Van Wormer as to his' conversations with testator indicate that he was not considering the value of plaintiff’s services to himself, but rather undertaking to determine what *455portion of his estate he should bestow'upon her while making generous gifts to other individuals and to numerous charities.
The opinion of the court may be resorted to, to show what was adjudicated. Topliff et al. v. Topliff, 8 C. C., 55.
In the syllabus of the opinion of the court below, Sellers v. Sayler, Exr., supra, it is stated:
“The compensation thus provided was larger than she could have expected on a quantum meruit. * * *
“The agreement must be regarded as established and the estate as liable in damages for the value of the stock so promised, notwithstanding her mercenary motive, the excellent bargain which she drove and the defective character of the agreement upon which she relies.”
And in the body of the opinion, on page 9, the following language is used:
“Except that the agreed compensation is large, and greater probably than could be given in an action for the reasonable value of such services, there would be little hesitation in finding the agreement to be as claimed.”
It therefore seems to me that the judgment below was based entirely upon a wrong hypothesis; that the court found an express contract and therefore gave no attention to any proof as to the value of services under an implied contract. And while it is the duty of this court, under Section 11364, General Code, to “disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party,” I can not' *456bring myself to believe that a trial based upon a wrong theory, wherein the real issue that can be determined by the court is disregarded and a judgment rendered on an issue which can not under the law be considered, is one where the “substantial rights of the adverse party” are not affected, and this even though the amount of that judgment might possibly coincide with the amount which could have been rendered under an implied contract. It was certainly “the substantial right”, of the defendant below to have the trial court consider and determine separately the only claim which plaintiff was entitled under the law to submit to the court, viz., the claim made under quantum meruit, and when the trial below consisted only of the determination of the claim under, the express contract (which all the judges of this court agree could not be considered), it can not be said that “substantial justice has been done” to defendant.
The record shows that the plaintiff has rendered services to the decedent for which she should receive liberal compensation, and it would be unfortunate that the settlement of the estate should be unnecessarily delayed by the sending back of this case for retrial. But where the amount plaintiff may be entitled to receive as the value -of her services rendered by her has, as I believe, not been considered or determined by the court below, it is, in my opinion, not the province of this court on error to take up that question and determine it from the record as though this were a trial court; nor is it correct for this court to now modify the judgment *457of the court below by fixing it at the amount claimed in the petition, reduced only by the payments which have been admittedly received by plaintiff on account of her services.
Messrs. Peck, Shaffer & Peck and Messrs. Sayler & Sayler, for plaintiff in error. Messrs. Plealy, Ferris & McAvo.y, for defendant in error.