Opinion
December 21, 1970
Appeal by defendant from a judgment of the Supreme Court, Queens County, entered December 15, 1965, in favor of plaintiff, upon a jury verdict. Judgment reversed, on the law, with costs, and complaint dismissed. The findings of fact have not been affirmed. In 1961 respondent entered into a written contract with appellant to renovate the latter's restaurant. Less than a year later, in February, 1962, respondent instituted an action alleging breach of the contract. The complaint was dismissed, however, at the close of respondent's case for failure to prove performance. In April, 1963 respondent instituted the present action, this time in quantum meruit, to recover $10,805.83 as the reasonable value of the work, labor, services and materials performed and supplied at appellant's request. The action finally came on for trial in December, 1965 and the jury's verdict was in favor of respondent for $9,025.83. The judgment entered thereon is the one being appealed (for prior litigation involving these parties, see Knoll v. Cape Cod Sea Food Rest., 23 A.D.2d 584). It is our opinion that the judgment in the prior action, which, in effect, held that respondent could not recover under the written contract because of his failure to substantially perform the contract, also served to bar recovery by respondent on the theory of quantum meruit. Respondent's failure to perform was not due to any wrongful conduct on appellant's part; nor was performance excused for any reason. That being so, respondent could not disavow the written contract and recover on quantum meruit (see 13 Am.Jur.2d, Building and Construction Contracts, § 44). In view of the existence of the written contract, respondent could recover the value of his services, etc., only if his failure to fully or substantially perform the contract was caused by appellant's prevention, repudiation, abandonment or waiver of the written contract provisions; and, then, his complaint must be founded upon the writing (see 5 Williston, Contracts [rev. ed.], pp. 4076-4077; see, also, Abinet v. Mediavilla, 5 A.D.2d 679).
In my opinion, the majority view would be dispositive of this case if, in fact, plaintiff had either an ostensible or actual contract right. At bar, the prior suit determined that plaintiff had no right to prevail upon the contract between the parties. Under those circumstances, plaintiff properly initiated the present action, it being an established rule that a plaintiff may resort to quantum meruit even after an unsuccessful suit in contract ( Potter v. Emerol Mfg. Co., 275 App. Div. 265, 268). Where an express contract is unenforceable, a party to the agreement may be entitled to reasonable compensation for services actually rendered by him ( Elsfelder v. Cournand, 270 App. Div. 162, 165). Moreover, in addition, defendant pleaded no offsets to plaintiff's claim in its answer and relied solely on the single affirmative defense that the dismissal of plaintiff's cause of action in contract, in the prior suit, was res judicata in this action for quantum meruit — a position for which there is no foundation in the law.