(dissenting).
The plaintiff was allowed a recovery under the third count which was in quantum meruit, although the evidence shows that he had an express contract with the defendant landowner.
“It is a well-settled rule that, when an express simple contract is open and unexecuted, and plaintiff proceeds for a breach of it, he must declare specially. General assumpsit will not lie. The law will not imply a contract where a valid express one exists. This rule is supported by the great weight of authority. 5 C.J. 1386, and cases cited. Lanier v. Chappell, 2 Fla. 621, 630; Sanderson v. Hagan, 7 Fla. 318, 324; 2 R.C.L. 761; 2 Enc. Pldg. & Prac. 990; Andrews’ Stephen’s Pldg. 59, 85, et seq.; C. & O. Canal Co. v. Knapp, 9 Pet. 541, 9 L.Ed. 222; Chitty, Pldg. 352.” Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853, 858.
Quantum meruit arises out of the concept that even though there is no contract to pay for services, yet when services are rendered to another with the latter’s consent and of which the latter got the benefit, there arises the implied obligation to pay the reasonable value of those services.. In the instant case, however, there is an express contract which specifies the value of the services to be rendered, the existence of which express contract negatives a right of action under the theory of the nonexistence of a contract. Furthermore, it is difficult to see what benefit could have accrued to the seller in the instant case when no sale or lease was made.
Since the plaintiff had an express contract which was not fully executed, he should have declared specially on said contract for the recovery of damages for the wrongful breach, if any, of his contract. Hazen v. Cobb-Vaughan Motor Co., supra. Or, if he contends that the contract was fully completed on his part, his right of recovery would still be on contract and not on quantum meruit. If it is the theory of the plaintiff that he produced a person ready, willing, and able to lease the defendant’s property upon terms agreed upon and that the landowner wrongfully refused to go through with the lease and that such refusal by the landowner was a waiver of the performance of the conditions precedent, then the suit could be on the contract for the specific commission provided in the contract as distinguished from damages for its breach. Quantum meruit is appropriate only in the absence of an express contract. See Hart v. Pearce, 98 Fla. 1087, 125 So. 243; Livingston v. Malever, 103 Fla. 200, 137 So. 113.
In this case, if the Plaintiff is entitled to recover, it must be: (a) for damages for a wrongful breach of the contract, specially declared upon, or (b) for the commission provided by the contract on the theory that there was a wrongful breach by defendant which waived the performance of the conditions precedent by the broker,1 which, if proven, would entitle the broker to the present value of his entire commission, but in no event is quantum meruit an appropriate remedy under the facts in this case. I respectfully dissent from the holding that a recovery is allowable in quantum meruit
Hart v. Pearce, 98 Fla. 1087, 125 So. 243; Livingston v. Malever, 103 Fla. 200, 137 So. 113.