Crockett v. Brady, 11745

• Citation: 455 S.W.2d 807
• Decision Date: 17 June 1970
• Docket Number: No. 11745,11745
• Parties: Moton H. CROCKETT, Jr., Appellant, v. George T. BRADY, dba Brady Air Conditioning, Appellee.
• Court: Texas Court of Appeals

Page 807

455 S.W.2d 807

Moton H. CROCKETT, Jr., Appellant, v. George T. BRADY, dba Brady Air Conditioning, Appellee.

No. 11745.

Court of Civil Appeals of Texas,

Austin.

June 17, 1970.

Joseph Latting, Coleman Gay, Austin, for appellant.

T. O. Dillard, Austin, for appellee.

HUGHES, Justice.

George T. Brady, dba Brady Air Conditioning sued Moton H. Crockett, Jr. upon a sworn account in the sum of $1,948.14. In the alternative, Brady sued in quantum meruit alleging 'that in the event he is mistaken or in the event Moton H. Crockett, Jr. did not promise to pay him the various amounts set forth in the preceding paragraphs, that the Defendant Moton H. Crockett, Jr., or his duly authorized servants and agents with full knowledge and consent, received the benefits of such goods, wares and merchandise furnished by the Plaintiff, and said Defendant accordingly by implication agreed to pay the Plaintiff the reasonable value for his said materials, services and merchandise' alleged to be $1,948.14. Attorney's fees were also sought.

Trial to the Court, without a jury, resulted in judgment on the quantum meruit pleading for Brady in the sum of $1,948.14, plus $1,000.00 attorney's fees.

Appellant's first three points are to the effect that recovery on the theory of quantum meruit was erroneous for the reason that the goods and services furnished by Brady were furnished to a general contractor under a contract between Brady and such contractor, and there was no evidence that Brady looked to appellant for payment therefor, the evidence conclusively showing that appellant had paid the general contractor for such goods and services.

We sustain these points.

Mr. Crockett entered into a written contract with Joe Friedman wherein Friedman agreed to furnish all material and perform all the work for the construction of a building called DeGress Motors Showroom according to drawings and specifications for a lump sum of money. There is no evidence that Friedman was other than an independent contractor.

We quote from the testimony of Mr. Brady:

'Q Mr. Brady, calling your memory back to the months of June and July, 1965, or sometime prior to that as a matter of fact, did you enter into some kind of arrangement with a man by the name of Joe Friedman, who was constructing the DeGress Motors Building?

A We accepted a contract from Joe Friedman on January 16, 1965, to air-condition a building later known as DeGress Motors, 3700 North Lamar, in the amount of $2,889.'

We quote the testimony of Mr. Crockett:

'Q Mr. Crockett, did you ever agree to pay Mr. Brady for air conditioning, or any part of it?

A No, sir.

Q Whom did you agree to pay for this building?

A I agreed to pay Mr. Friedman under a fixed contract.

Q Have you paid him all that you owed him on it?

A Yes, sir.'

This testimony is undisputed.

In Crockett v. Sampson, Tex.Civ.App., 439 S.W.2d 355, no writ (1969) we stated the well settled rules applicable to a recovery on quantum meruit, as follows:

'Liability on quantum meruit is based on a contract implied in law . An essential prerequisite to such liability is the acceptance of benefits by the one sought to be charged, rendered under such circumstances as reasonably to notify him that the one performing such services expected to be paid therefor by him, the person sought to be charged. 98 C.J.S. Work and Labor § 8, p. 724, Wyche v. Perrin, 228 S.W.2d 330, Tex.Civ.App. Dallas, writ ref. n.r.e. (1950) .'

The work which Mr. Brady agreed with Friedman to do was completed by July 28, 1965. It was not until November 8, 1965, that Mr. Crockett was notified by Mr. Brady that his bill was partially unpaid and that steps were being taken to establish a statutory lien on the property in question, Mr. Crockett being its owner.

It is undisputed, of course, that Mr. Crockett has received the benefit of the air conditioning furnished him by Brady. Mr. Crockett has paid for this air conditioning by paying Mr. Friedman as he was obligated by contract to do. Should appellee recover, Mr. Crockett will have paid for it twice.

We are at loss to find any evidence to support an implied and essential finding to the effect that Mr. Crockett in any manner or by any words or conduct of his gave Brady any reason to believe that he would pay for the air conditioning furnished by Brady under his contract with Friedman.

We will recite the substance of the testimony upon which Brady attempts to sustain the judgment of the Trial Court.

Appellee invoiced Mr. Friedman on July 1, 1965, in the amount of One Thousand Eight Hundred Fifty-nine Dollars and 40/100 ($1,859.40) . At this point in time, Mr. Crockett testified that the job was in trouble; that he had paid Mr. Max Warren for some work done on the job and further stated, 'On the date when I took this thing over to do some work on the job, I couldn't tell you how much it would cost to complete that job.' Mr. Crockett also testified that he had paid $50,000.00, and was due to retain something like $6,000.00 and that the building could have been finished as of June 14, 1965, for only four thousand dollars more. Appellant...