¶1While agreeing with the conclusion reached by the presiding justice, the grounds of my conclusion are not entirely the same. It is unnecessary to cite authorities for the proposition that a plaintiff may unite in the same complaint a cause of action upon express contract ánd another cause of action, involving the same subject-matter, upon quantum valebat. This fight, I apprehend, is to enable the plaintiff, if .the contract be denied, to recover upon his quantum valebat. And such pleading would seem to be sanctioned by the case of Howarth v. Howarth, decided by this court and reported in 67 Appellate Division, 354. Where, however, the defendant admits that a contract was made as to the price, that fact becomes established- for the purposes of that action, and the plaintiff should not be allowed to recover, upon the theory that no price was agreed upon, as against the admission of both parties. I am not prepared to agree that this complaint would not .be deemed to include a caiise of action upon a qucmtum valebat as well as a cause of action upon contract, if the defendant had not foreclosed the issue by admitting the contract. If the contract had been here denied,- and the plaintiff had failed to establish the same, I think he should have been allowed to recover under this complaint upon a quantum valebat.
¶2Judgment reversed on the law and facts, referee discharged, and new trial granted, with costs to appellant to abide event.