Anderson v. Casebolt

• Decision Date: 07 July 1972
• Docket Number: No. 17321,17321
• Citation: 484 S.W.2d 462
• Parties: W. J. ANDERSON et al., Appellants, v. A. R. CASEBOLT, Appellee.
• Court: Texas Court of Appeals

Page 462

484 S.W.2d 462

W. J. ANDERSON et al., Appellants, v. A. R. CASEBOLT, Appellee.

No. 17321.

Court of Civil Appeals of Texas Fort Worth.

July 7, 1972.

Rehearing Denied Sept. 15, 1972.

Elton M. Hyder, Fort Worth, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, and Robert S. Travis, Fort Worth, for appellee.

OPINION

LANGDON, Justice.

This is a suit to recover money under a written contract to construct a boathouse in accordance with drawings and specifications and alternatively on the basis of quantum meruit. The case was tried to a jury. It found that (1) the appellants did not fully complete the written contract; (2) that such failure was not because the appellee refused to allow appellants to come upon his premises; (3) that appellants did not substantially complete the work required of them under the contract; (4) that labor and material for improvements did benefit the appellee; (5) that the reasonable value of such improvements was $1,400.00; and (6) the sum of $400.00 was found to be a reasonable attorney's fee.

The court entered a take nothing judgment against the appellants and this appeal is from that judgment based upon three points of error.

We affirm.

By their first point the appellants contend that the court erred in rendering judgment against them because the evidence clearly showed that the benefits of the contract had been received, used and accepted by the appellee.

It is undisputed that the parties to this suit executed a written contract expressly covering their respective rights concerning the construction of the boathouse and payment therefor and that the construction work under the contract was not completed. The appellants concede in their brief that any recovery by them can be based only on quantum meruit.

'The right to recover on quantum meruit does not grow out of the contract, but is independent of it. It is based upon the promises implied by law to pay for beneficial services rendered and Knowingly accepted. (Citation of authorities.)' Davidson v. Clearman, 391 S.W.2d 48 (Tex.Sup.1965). (Emphasis ours.)

In Houston Lumber Supply Company v. Wockenfuss, 386 S.W.2d 330 (Houston Tex.Civ.App., 1965, ref., n.r.e.) the court said:

'We have found no case where it was held that the act of taking possession of a house, after protest and by reason of necessity, is, as a matter of law, an acceptance of benefits under an invalid building contract. Where the benefits are not accepted, no action on quantum meruit will lie. Tramonte v. A. J. Rasmussen & Sons, Tex.Civ.App., 167 S.W.2d 566; Cantrell v. Garrett, Tex.Civ.App., 342 S.W.2d 466; Benson v. Harrell, Tex.Civ.App., 324 S.W.2d 620. We are of the opinion that an issue of fact was raised by this evidence as to whether appellees knowingly...