I do not agree with what is said in the majority opinion regarding the matter of numbering plaintiff's causes of action. Plaintiff saw fit to plead two causes of action. The first one was split into two counts designated "First Count," and "Second Count," and they were separately stated and numbered as such. The complaint then contained a second cause of action separately stated and numbered as such.
It should be noted that the "First Count" and the "Second Count" are for the same purpose, concern the same subject matter and are for the same amount and for the identical services. The only difference between them is that the "First Count" is on an express contract to pay the stated amount claimed, whereas the "Second Count" is on an implied contract to pay the same amount as the reasonable value.
This court has repeatedly held that it is proper for plaintiff to state the same cause of action in different counts in order to meet the exigencies of the cause as presented by the evidence.
Blankenship v. Decker, 34 Mont. 292, 85 P. 1035; Neuman v. Grant, 36 Mont. 77, 92 P. 43; Fitzgerald v. Eisenhauer,62 Mont. 582, 206 P. 685; Wilson v. Milner Hotels Inc., 116 Mont. 424,154 P.2d 265; Sharp v. Sharp, 66 Mont. 438,213 P. 799.
Plaintiff's counsel should not be criticized for scrupulously following a practice expressly approved by this court.
The complaint does not contain three causes of action as assumed in the majority opinion. The first cause is stated differently in each count to meet the exigencies of the proof.
Also I construe prior decisions of this court on the effect of a pleading "denying the material allegations" in a pleading differently from the conclusion reached in the majority opinion.
In Missoula Mercantile Co. v. O'Donnell, 24 Mont. 65,60 P. 594, 991, 992, this court said: "Defendants, in their answer, first deny `specifically and generally each and every material *Page 408 matter and thing' contained in the complaint. Again, referring to the paragraph of the complaint containing this allegation, defendants deny `that the whole of the material mentioned in said paragraph went into, and was used in the construction of, the building therein mentioned.' These denials are clearlyinsufficient. No objection was made to them in the district court, however, both parties and the court treating them as sufficient. Both plaintiff and defendants introduced evidence on the theory that the issue was sufficient. It is too late for the respondent to object for the first time in this court that there was no issue. It must be held to abide the result of the position assumed and maintained by it in the trial court." (Emphasis supplied.)
Here, however, plaintiff raised the point in the trial court and has consistently adhered to the view that the answer as to the "Second Count" and "second cause of action" raised no issue. Neither he nor the defendant introduced evidence on the assumption that issues were raised by this denial and there was no waiver of the point.
In Burke v. Inter-State Savings Loan Ass'n, 25 Mont. 315,64 P. 879, 87 Am. St. Rep. 416, this court said: "The defendant suggests that the judgment should be affirmed because the reply is insufficient to raise an issue upon any of the allegations of new matter in the answer. This suggestion is based upon the ground that the plaintiff in his reply denies the `material' allegations of the answer. Such form of attempted denial is bad, for the reason that it is equivalent to saying that the truth of such allegations as the court may decide to be material is controverted; thus rendering it impossible to determine from the reply what is intended to be traversed. Such a denial is at least uncertain. But there was no objection in the court below to the form of the denial, and the cause was tried upon the assumption that the denial was sufficient. Conceding that a reply was necessary to frame an issue upon the new matter in the answer, the objection that might have been interposed to the denial therein contained was waived."
In Hamilton v. Huson, 21 Mont. 9, 53 P. 101, 103, it was *Page 409 said: "Counsel for appellant contend that the denial in the answer `of every material allegation in the complaint is not sufficient,' and that plaintiff is entitled to judgment on the pleadings. In the court below, the parties treated the denial as good and sufficient, and the case was tried on that understanding. This question cannot be raised now, the parties having treated the pleadings as sufficient in the court below."
Again I repeat, the plaintiff here did no act or thing in the trial court that may be construed as a waiver of the right to assert that the answer raised no issue on the second count and the second cause of action. The case was not tried on the theory that the answer was sufficient to raise issues, but on the theory that it did not raise any issue. Plaintiff went to trial aided by the provisions of section 9178, R.C.M. 1935, which in part reads: "Each material allegation of the complaint, not controverted by the answer, * * * must, for the purposes of the action, be taken as true * * *"
The case of Nelson v. Stukey, 89 Mont. 277, 300 P. 287, 78 A.L.R. 483, was one in which the denial was of the "affirmative allegations" of a pleading and is of course different from that here where the denial is of the "material" allegations. The reason for the difference rests in the fact that the "affirmative" allegations may be readily ascertained, whereas there may be a wide difference of opinion as to what allegations are "material," and hence, as to the latter, the pleading is uncertain.
I think it is plain from our prior decisions that a denial such as that involved here is insufficient to raise issues. If that be so, and if the allegations are not otherwise controverted, then they stand admitted. Sec. 9178, supra. There are cases holding that such a denial is sufficient. They are listed in 49 C.J. 260, cited in the majority opinion. But Montana holds that such a denial is insufficient to raise issues and we must either adhere to the Montana view or overrule the prior decisions on the point. My associates refer to 49 C.J. 833, 41 Am. Jur., "Pleading," sec. 396, page 565, Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 152 P. 481, L.R.A. 1916D. 836, and other authorities as sustaining *Page 410 the contention that a party waives defects in a pleading by going to trial without objection. That of course is a fundamental rule with which I have no quarrel. It is not applicable here, however, because plaintiff is not counting upon any defect in the answer. He says in effect it is a good answer. In legal effect he says it is tantamount to an admission of the allegations of the second count and the second cause of action. If the denial in question were the only means of ascertaining the issues, I think plaintiff's position would be meritorious.
But I am able to concur in the view stated in the majority opinion that the answer was sufficient to raise issues but not for the reasons stated therein. I think the answer when considered as a whole raises issues despite the form of the denial.
I think had plaintiff endeavored in good faith to ascertain from the answer what facts were actually in dispute he could have readily done so.
A fair reading of the answer as a whole including the counterclaim will disclose that defendant admitted the making of the agreement as alleged in plaintiff's "First Count" but alleges that the work was not done satisfactorily as agreed. The real issue between the parties as fairly disclosed by the pleadings was whether the work was done satisfactorily.
I think, however, in view of the peculiar circumstances of this case that the cause should be remanded for trial. I reach this conclusion for this reason: The dismissal of the action, though perhaps technically correct under the circumstances, was caused by the fault of both counsel. The litigants have not had their case tried on its merits. The plaintiff's causes of action and the defendants' counterclaim ought not to be frittered away without trial and on some technicality arising because of misconceptions of legal principles contributed to by counsel for both parties. I am impressed with the action of the Supreme Court of Vermont in Vilas v. Seith, 108 Vt. 18, 183 A. 854, 856, where the action was dismissed by the lower court. The Supreme Court held the lower court acted properly but nevertheless remanded the case for further proceedings, saying: "While the record before *Page 411 us requires an affirmance of the decree, we are satisfied that plaintiff may have a meritorious case if it is properly presented, and in order that an injustice may not be done the case will be remanded for further proceedings. Hebard v. Cutler,91 Vt. 218, 99 A. 879; Rice v. Bennington County Sav. Bank,93 Vt. 493, 512, 108 A. 708; O'Boyle v. Parker-Young Co., 95 Vt. 58,112 A. 385, and later cases. O'Boyle v. Parker-Young Co., supra, is directly in point. It there appeared that on the record the order of the Commissioner of Industries, which was adverse to the claimants, would have to be affirmed, but it appearing that this might do the claimants an injustice, the order was reversed pro forma and the cause remanded for further proceedings." To the same effect is Shea v. Pilette, 108 Vt. 446, 189 A. 154,109 A.L.R. 933.
My associates attempt to draw a comparison between this case and Molt v. Northern P. R. Co., 44 Mont. 471, 120 P. 809; State ex rel. La France Copper Co. v. District Court, 40 Mont. 206,105 P. 721; Gregory v. Chicago, M. St. P.R. Co.,42 Mont. 551, 113 P. 1123; Le Vasseur v. Roullman, 93 Mont. 552,20 P.2d 250, and other cases of similar import.
In those cases plaintiff submitted proof on the merits. The court simply held in them that since plaintiff had one fair opportunity to present all of his evidence, the court will assume that he introduced all that he had and would not remand the case for another trial. Here no evidence was introduced. Plaintiff chose this procedure because of prior holdings of this court that a denial such as we have here is insufficient. It being insufficient then section 9178 came to his aid and no proof was necessary. He was not wholly without some justification in believing that this court would adhere to those holdings and that they were applicable to this case.
I think it is unjust to the litigants to have the case go off on technical matters of procedure where there has been no semblance of a trial on the merits.
I realize it is generally improper to reverse a case where the district court has not been at fault. But in my opinion the *Page 412 court could and perhaps should have avoided the situation presented here.
The rule is that where there is an express contract there can be no implied contract with reference to the same subject matter. 17 C.J.S., Contracts, sec. 5, page 321; 12 Am. Jur., "Contracts," sec. 7, page 505; Keith v. Kottas, 119 Mont. 98,172 P.2d 306.
While as above stated plaintiff had the right to plead in one count an express contract and in the other an implied contract to meet the exigencies of his proof, where as here, the answer admits the express contract, there no longer can be an implied contract with reference to the same subject matter covered by the express contract, and in legal contemplation the count alleging an implied contract is no longer in the case. Plaintiff could not then elect to stand on the count charging an implied contract. Though no objection was made, I think the court on its own motion would have been justified in preventing plaintiff from making the election.
It is no different in principle than if plaintiff had elected to abandon all his pleadings and announced his purpose to try title to a tract of land claimed by him and defendant though there were no pleadings before the court in a quiet title action.
The case should be tried once. I think it presents so many mistaken notions, caused or contributed to by counsel for both sides, which prevented the litigants from having a trial, that it should be remanded for trial.
Since this is an equity case I think we plainly have the authority and discretion for good cause to order a trial or the taking of further evidence under the latter part of section 8805 and that we should do so in this case.