Defendant assigns as error the failure of the trial court to grant its motion for directed verdict on plaintiff’s cause of *552action based on specific contract and its motion for judgment notwithstanding the verdict. We think the assignment has merit.
The contract clearly provides that plaintiff was to be paid for his work “on the same basis” as payment was received by defendant from the owner. In stipulation numbered 5 above, plaintiff admitted that he had received payment for dirt fill placed in Zone 1 on the same basis as payment was received by defendant from the project owner. On cross-examination plaintiff stated: “. . . I have been paid for everything that went into Zone 1 that Clement has been paid for and Clement has lived up to the contract by paying me for what stayed in Zone 1.”
The only evidence supportive of a claim by plaintiff related to clay which plaintiff hauled and which spilled over into Zone 2. Plaintiff contends that the spillage was considerable and that defendant’s agent agreed that they would “work out something” with respect to it. Defendant, on the other hand, contends that it not only received no benefit from the spillage but that it created a problem due to the different type and purpose of materials that were required for Zone 2.
Any claim which plaintiff might have for hauling clay which did not stay in Zone 1 would have to be based on quantum meruit. It is noted that the trial court’s instructions with respect to the spillage were given on the second and third issues. A jury question was raised as to quantum meruit, the jury answered the issues against plaintiff, and plaintiff did not appeal from that determination. There is no evidence to support a verdict on the first issue relating to express contract.
Defendant was entitled to allowance of its motion for directed verdict with respect to the claim presented in the first issue. Since the court submitted the issue and it was answered in favor of plaintiff, defendant was entitled to an allowance of its motion for judgment notwithstanding the verdict. G.S. 1A-1, Rule 50.
For the reasons stated, the judgment appealed from is vacated and this cause is remanded to the superior court for the entry of judgment setting aside the verdict on the first issue and dismissing the action.
Judgment vacated and cause remanded.
Judges Parker and Clark concur.