The record before us clearly shows that error was
committed upon the trial, and that the defendant duly excepted to rulings which are assigned as erroneous. The plaintiff, having, at the opening of the case, been required to elect as to whether he would proceed as for quantum meruit or upon contract, chose the former cause. Notwithstanding this, he was permitted to introduce evidence tending to show a special contract, under which, although, still endeavoring to obtain as much as he deserved, he sought, and was permitted, to conclude defendant by trying two alleged causes of action improperly joined,—a condition of allegation and of proof quite anomalous, and out of order in present-day procedure. Plaintiff thus having chosen quantum meruit as the basis of his action, the alleged written contract, and all the testimony thereunder tending to its substantiation, became immaterial, and he should not have been permitted to continue upon such ground, and try his case both ways, and then have a verdict directed in his favor. Moody v. Leverich, 14 Abb. N. S. 145. We find, in view of this conclusion, that either the complaint should have been dismissed upon plaintiff’s evidence that was pertinent to the issue he had elected, or else that the jury should have passed upon the facts as to what, if any, commission had been earned.
The verdict should be set aside, .and a new trial ordered, with costs and disbursements to the defendant to abide the event.
O’DWYER, J., concurs.