On Motion for Rehearing.
PER CURIAM.On motion for rehearing appellant has re-argued the issues presented in his original brief and he particularly complains of our holdings (1) that the second count of the petition stated a cause of action in quantum meruit for the recovery of the reasonable value of plaintiff’s services; (2) that plaintiff’s evidence was sufficient to make a sub-missible case for the jury; and (3) that the trial court did not err in overruling defendant’s motions for a directed verdict. Appellant insists that “both counts of the petition declare upon an express contract that plaintiff was to receive the entire estate.” Appellant further says there was no pleading, proof, or submission of the non-payment of plaintiff’s claim; that there was an omission of an essential element from plaintiff’s instruction No. 1, to wit, “the element of non-payment”; that “the breach of an action of quantum meruit is failure to pay plaintiff for the reasonable value of her services”; that “there was no evidence on behalf of plaintiff that she was not so paid” ; that the instruction failed to require a “finding that plaintiff had not been paid for her' services”; and that “the verdict does not supply the omission of an essential' element from the instruction.”
We need not here review our holding that the second count of the petition stated a cause of action for the recovery of the reasonable value of plaintiff’s services and regardless of the validity or invalidity of the contract under which the services were rendered. In the second count of the petition plaintiff realleged the facts set forth in the first count and added an allegation that the reasonable value of the services rendered pursuant to the contract was $50,000. She further alleged non-payment thereof as follows : “which sum defendant has failed and refused to pay to plaintiff,” and she prayed “judgment in the sum of $50,000 for her services as rendered.” Defendant’s answer *279to this count denied the contract and denied “that plaintiff rendered any services other than as an employee in the store of Theresa F. Nibler and Rose M. Davidson, for which services plaintiff was paid in full at the time.” Defendant’s counsel in the trial, in obj ecting to certain evidence recognized the difference between the two counts and the theory upon which each was brought, as follows: “The contract alleged in one count, and the ground of action is alleged to be, that she promised to leave all of her property, and whatever that may have been, that is one thing. The second count under which they proceed is for the alleged reasonable value of her services, and that would be another thing which would be unrelated as to whether she held property here in Springfield.”
The cause was submitted on the second count.' Defendant’s instruction No. 4, recognized that plaintiff only sought compensation for her services (not the value of the estate) and defendant joined in that submission as follows: “ * * * even though you may find and believe from the evidence that plaintiff rendered valuable services to deceased during her lifetime for which she was not compensated, nevertheless, plaintiff cannot recover in this action for such services, if any, unless there was an express agreement between plaintiff and deceased that plaintiff should be paid therefor * * such a contract would only exist if- there was a mutual agreement between the parties for services to be rendered and compensation to be paid therefor in addition to any compensation that was actually received * * (Italics ours).
As stated in the opinion, we think that the evidence was sufficient to sustain an inference that plaintiff was not paid the reasonable value of her services, however, it was unnecessary for plaintiff to prove or submit the non-payment of her claim for services rendered. Non-payment was not an essential element of plaintiff’s cause of action to recover the reasonable value of her services. Although she pleaded non-payment, she did not need to prove it, nor submit it to the jury. Ferguson v. Dalton, 158 Mo. 323, 326, 59 S.W. 88; Adkinson v. McKay, 186 Mo.App. 391, 399, 172 S.W. 83. Proof of non-payment was unnecessary to the establishment of liability, or to prove the indebtedness to plaintiff for the services in question. On the facts shown the law imposed the obligation to pay. Ferguson v. Dalton, supra. And see State ex rel. Spaulding v. Peterson, 142 Mo. 526, 532, 39 S.W. 453, 40 S.W. 1094. Payment was an affirmative defense. Section 509.090 RSMo 1949, V.A.M.S. The burden of pleading and proving payment in this action rested upon the defendant. Pflanz v. Pflanz, 237 Mo.App. 873, 880, 177 S.W.2d 631. It was a matter of defense to be submitted to the jury in defendant’s instructions. See Kines v. Jamison, Mo.App., 277 S.W. 969, 972(2. 3).
In the case of Leggett v. Mutual Commerce Casualty Co., Mo.Sup. 250 S.W.2d 995, 998(6), there was both pleading and proof of non-payment and the same appears to have been true in Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978(10). No issue as to the necessity for proof of non-payment was presented in either of those cases and the matter was not for decision therein.
Appellant’s motion for rehearing or, in the alternative, to transfer to Court en Banc is overruled.