If You Want an Implied Contract, Ask For It
The Court of Appeals' recent decision in Maynard M. Gordon v. Horizon Communications, Inc. is long and fact-intensive, but bares at least one important point: If you want an implied contract, ask for it.
The short version of the case is that the plaintiff had a contract to write articles and perform various other duties for the defendant publisher. The plaintiff wrote articles, but the articles were shorter than expected, and the plaintiff did not perform the miscellaneous other duties under the contract. The defendant used some of the articles that the plaintiff wrote, but did not pay the plaintiff. The plaintiff sued for breach of a written contract. The Court of Appeals affirmed the trial court's decision that the plaintiff had materially breached first, that the defendant did not waive any of those breaches, and that the defendant did not itself breach the written contract.
The Court of Appeals noted that the plaintiff was suing for breach of the written contract, not under a theory of implied contract or quantum meruit. Under an implied contract or quantum meruit theory, the plaintiff may have been entitled to reasonable pay for the work the plaintiff actually did - even if it was not the work agreed upon in the written contract. Since the plaintiff only asked for recovery under the written agreement, the plaintiff was not entitled to the reasonable value of the plaintiff's services.