Colbert v. Dallas Joint Stock Land Bank of Dallas

• Citation: 102 S.W.2d 1031
• Decision Date: 03 March 1937
• Docket Number: No. 7197.,7197.
• Parties: COLBERT v. DALLAS JOINT STOCK LAND BANK OF DALLAS.
• Court: Supreme Court of Texas

Page 1031

102 S.W.2d 1031

COLBERT v. DALLAS JOINT STOCK LAND BANK OF DALLAS.

No. 7197.

Supreme Court of Texas.

March 3, 1937.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by T. R. Colbert against the Dallas Joint Stock Land Bank of Dallas, Texas. Judgment for plaintiff was reversed by the Court of Civil Appeals [98 S.W.(2d) 239], and plaintiff brings error.

Judgment of the district court and of the Court of Civil Appeals reversed, and cause remanded for new trial.

Scarborough & Ely and Edmund C. Yates, all of Abilene, for plaintiff in error.

Renfro, McCombs & Kilgore and William Andress, Jr., all of Dallas, for defendant in error.

SMEDLEY, Commissioner.

The nature of the suit and the result of the trial in district court are thus stated in the opinion of the Court of Civil Appeals:

"The plaintiff, T. R. Colbert, instituted this suit against the Dallas Joint Stock Land Bank, a corporation, to recover a broker's commission for services alleged to have been rendered the defendant in the sale of 8,117 acres of land, known as the `R. V. Colbert ranch' in Jones and Haskell counties. The trial was before the court and jury and upon answers of the latter to special issues a judgment was rendered for the plaintiff. The bank appeals.

"The verdict of the jury finds (1) that G. D. Gay, vice president of the bank, employed plaintiff, T. R. Colbert, to sell the ranch; (2) that said Gay told Colbert that he would be paid commission for such sale; (3) that Colbert `was the procuring cause of the sale of an undivided one-half interest in the Colbert ranch by the Dallas Joint Stock Land Bank to G. C. Carothers'; and (4) that 5 per cent. `was the usual and customary agent's commission,' etc. The judgment entered in favor of Colbert was for $1,420.45. This was evidently based upon the sale of one-half of the ranch, although the petition sought recovery of $2,840.50 as for sale of the entire ranch. The bank sold the entire ranch to Hardy Grissom and said G. C. Carothers in undivided interests for a consideration of $56,825.30."

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of the bank that Colbert take nothing by his suit. 98 S.W.(2d) 239. In reaching its decision the Court of Civil Appeals held: First, that the record contains no evidence that the bank by any official act ever conferred upon Gay, its assistant vice president, express authority to employ Colbert as broker to sell the land; second, that if there was evidence tending to prove that Gay was authorized to employ Colbert, the issue was waived by Colbert in failing to request the court to submit such issue to the jury, it being an issue essential to Colbert's recovery; third, that the sale by the bank of an undivided one-half interest in the land to Carothers was not a ratification of Gay's attempt to make an express contract with Colbert for the sale of the entire interest in the land; fourth, that if the issue of ratification was raised by the evidence, Colbert waived it by failing to request its submission; fifth, that there was a fatal variance between the pleadings and the judgment, in that Colbert's petition declared upon an express contract for the sale of the entire interest in the land, without presenting an alternative cause of action for recovery on quantum meruit, and judgment was rendered for a commission on account of the sale of a one-half interest; and, sixth, that the court was required by the terms of article 1856, Revised Civil Statutes of 1925, to render judgment rather than to remand the cause for a new trial.

The errors assigned in the application for writ of error relate to the ruling of the Court of Civil Appeals that the petition does not state a cause of action on quantum meruit, to the action of that court in rendering judgment instead of remanding the cause, and to the holding of the Court of Civil Appeals that the judgment of the trial court should be reversed on account of the absence of a jury finding that Gay was authorized to enter into the contract of employment with the plaintiff.

We do not agree with the conclusion of the Court of Civil Appeals that the petition fails to allege facts presenting a cause of action for recovery on quantum meruit. We construe the petition as alleging two causes of action, one for recovery on the contract made by the plaintiff with Gay and the other for recovery, on contract implied by law, of the reasonable value of the services performed by the plaintiff and accepted by the bank. The petition is not in strict compliance with articles 1997 and 2003 of the Revised Civil Statutes, for it does not contain logical and concise statements of the two causes of action. The allegations of facts to support the right of recovery for the value of the services rendered for and accepted by the bank are not distinctly separated from the allegations which relate to the express contract. Better order, more certainty, and greater clarity would have been attained had the two causes of action been set out in separate counts; and if a special exception had been directed to the petition for the failure of the pleader to allege the two causes of action in separate counts, the trial court should have sustained it. But a petition which alleges facts constituting a cause of action on an express contract and facts constituting a cause of action on quantum meruit is not subject to general demurrer, not fatally defective, on account of the failure of the pleader to set out the two causes of action in separate counts, or to plead them in the alternative, unless the averments are inconsistent and thus contradict and falsify themselves. See Rowe v. Horton, 65 Tex. 89; Barry v. Screwmen's Benevolent Association, 67 Tex. 250, 254, 3 S.W. 261. There is no fatal inconsistency between the allegations in the plaintiff's petition in this case relating to the express contract and the allegations which form the grounds of the action on quantum meruit.

Neither the statutes nor the rules make the use of separate counts or pleading in the alternative mandatory. They contemplate primarily the allegation of the facts out of which the rights of the plaintiff have grown and do not require the presentation of the theory or theories of law applicable to the facts alleged or that the allegations of fact be fitted into a form or forms of action. Articles 1997, 2003, Revised Civil Statutes 1925; Edgar v. Galveston City Co., 46 Tex. 421; O'Neal v. Bush & Tillar, 108 Tex. 246, 255, 256, 173 S.W. 869, 177 S.W. 953, 191 S.W. 1133; White v. Texas Motor Car & Supply Co. (Tex.Com.App.) 228 S.W. 138. Rule 4 for district and county courts (Smoot's Texas Court Rules, p. 349) provides that the plaintiff in his petition "may state all of his facts, so as to present together different combinations of facts, amounting to a cause or causes of action, as has been the usual practice, or he may state the cause or causes of action in several different counts, each within itself presenting a combination of facts, specifically amounting to a single cause of action, which, when so drawn, shall be numbered, so that an issue may be formed on each one by the answer." This rule is so phrased as to give to the plaintiff the option either to state all of his facts together, even though they present more than one cause of action, or to state his causes of action in separate counts, each alleging within itself a combination of facts amounting to a single cause of action. The practice suggested by the second part of the rule is preferable in the interest of certainty and clarity and it avoids destructive contradiction in inconsistent averments. See Stayton's Method of Practice in Texas Courts, § 85, pp. 80-82; Action, Cause of Action, and Theory of the Action in Texas, by W. Page Keeton, 11 Tex.Law Rev. pp. 286-291.

The express contract alleged by the plaintiff in his petition is that Gay, vice president of the bank, acting for the bank and with authority, employed Colbert as agent to sell the ranch and agreed to pay him a commission. The contract was for the procuring of a purchaser of the entire ranch or the entire interest in it. In the trial court judgment was rendered in favor of plaintiff as compensation for his services in procuring a purchaser of an undivided one-half interest in the ranch. The Court of Civil Appeals correctly held that the plaintiff, suing on an entire contract, cannot recover on the contract when he has only partially performed, unless complete performance has been prevented by the other party to the contract. Childress v. Smith, 90 Tex. 610, 616, 38 S.W. 518, 40 S.W. 389; Dodds & Wedegartner v. Reed (Tex.Civ.App.) 69 S.W.(2d) 165; 10 Tex.Jur. pp. 410, 411, § 235; pp. 445, 446, § 259. There is no pleading, and no effort was made to prove, that Colbert was wrongfully prevented by the bank from procuring a purchaser for the entire interest in the property.

Examining the petition for allegations of facts from which the law will imply a promise to pay the value of Colbert's services, we find first the allegation that he was employed by the vice president to procure a purchaser of the ranch. The fact so alleged, even in the absence of proof of Gay's authority to act for the bank, is relevant in support of an...