# Krupnick and Associates, Inc. v. Hellmich

> Supreme Court of Missouri · April 13, 1964 · 378 S.W.2d 562

URL: https://www.frixlaw.com/law-library/cases/9671613

## Case

- **Full name:** KRUPNICK AND ASSOCIATES, INC., (Plaintiff) Appellant, v. Edward J. HELLMICH Et Al., (Defendants) Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** April 13, 1964
- **Citations:** 378 S.W.2d 562; 1964 Mo. LEXIS 788
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Welborn, Coil, Houser
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671613

## Opinion text

ON MOTION FOR REHEARING OR TO REMAND
PER CURIAM:
Appellant has filed a motion for rehearing before this court, or in the alternative, to remand the cause to the trial court for further proceedings and to allow amendment of its petition to seek recovery on another theory.
The motion for rehearing merely reargues matters considered and disposed of in the court’s opinion.
With respect to the motion to remand, appellant states that “the furtherance of justice requires that the cause be remanded to the trial court to permit plaintiff to amend its pleadings and to submit the case on a proper theory. If plaintiff misconceived its remedy and if the contract as pleaded was not proved, there was evidence which would substantiate recovery either on the ground of quantum meruit for the reasonable value of the services rendered by plaintiff or on the theory of a contract which was terminated by defendants effective July 10, 1958 (ninety days after the letter of April 11, 1958) with damages recoverable by plaintiff for breach until the effective date of termination.”
In respect to the contention that 'there was evidence to substantiate recovery on quantum meruit, the express contract which existed between the parties and which was shown by the plaintiff’s evidence would preclude recovery on that basis just as the express contract precluded the finding of a contract implied in fact and relied upon by plaintiff in its original petition. Such express contract would also preclude the existence of the contract implied by *570 law or quasi contract, necessary to form the basis for recovery in quantum meruit. Perles & Stone, Inc. v. Childs Co., 340 Mo. 1125 , 104 S.W.2d 361, 365 ; 17 C.J.S. Contracts § 6, page 574; 7 C.J.S. Assumpsit, Action of § 9, page 115; 12 Am.Jur., Contracts, Section 7, page 505. This is not an ordinary contract for personal services or work and labor which has been fully performed by the party seeking recovery, with the payment of money by the other party the only thing remaining. See Taetz, Inc. v. Groff, 363 Mo. 825 , 253 S.W.2d 824 . By its express undertaking, Krupnick agreed that compensation for its services should be derived from specified sources, the major one being commission on media space purchased for advertisements placed on behalf of the defendant clients. This express agreement with regard to the source of plaintiff’s compensation negatives the existence of any agreement implied either in fact or by law to compensate them on a different basis.
With respect to the notice, the motion for rehearing objects for the first time to the sufficiency of the notice and to its failure to comply with the 90-day terms of the arrangement between the parties. No objection was offered at trial to the introduction of the evidence regarding the termination letter nor was any objection raised originally on the appeal. In any event, we are of the opinion that there is nothing to support a recovery on the basis outlined by the appellant in his motion here. In this connection, the appellant refers to subparagraph B of the provisions of the Client and Agency Working Agreement set out in the opinion. Appellant contends that, under this provision, the advertising agency had the right during the 90-day period to go forward with the placing of the advertisements on which it was working at the time of the termination notice and thereby collect commissions for the work already completed at the time of termination. However, the provisions of the Client and Agency Working Agreement refer specifically, in subparagraph B, to “space * * * used in print * * * media.” According to the evidence, before such space would be purchased, written authorization from the client would have been required. None had been obtained in this case. Therefore, the provision could not have been relied upon and extension of the relationship to the end of the 90-day period from April 11, 1958, would avail plaintiff nothing further in this case.
Therefore, the motion for rehearing or to remand is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671613. Public record. Not legal advice.