Freeman v. Carroll, 664

• Decision Date: 13 September 1973
• Docket Number: No. 664,664
• Citation: 499 S.W.2d 668
• Parties: Howard Ulysses FREEMAN, Appellant, v. Bill W. CARROLL, Appellee.
• Court: Texas Court of Appeals

Page 668

499 S.W.2d 668

Howard Ulysses FREEMAN, Appellant, v. Bill W. CARROLL, Appellee.

No. 664.

Court of Civil Appeals of Texas Tyler.

Sept. 13, 1973.

Rehearing Denied Oct. 11, 1973.

Alfred H. Summers, Palestine, Stayton, Maloney, Black, Hearne & Babb, Austin, for appellant.

R. E. Swift, Palestine, for appellee.

McKAY, Justice.

Appellee, Bill W. Carroll, brought this suit against appellant, Howard Ulysses Freeman, for services and materials provided in planting a stand of coastal bermuda grass on appellant Freeman's property in Anderson County. In the trial court appellee pleaded both an express contract, and in the alternative, quantum meruit as bases of recovery. It appears from the record that some sort of oral agreement was supposedly reached in January, 1970, between the parties for the planting and growing of a stand of coastal bermuda on appellant's property. Appellee alleged that he guaranteed a stand of grass only if the appellant would fertilize it, would keep cattle off the stand for one year, and would keep the weeds out of the grass. Appellee, on the strength of this alleged agreement, began work on the property immediately. Not until April, 1970, was any element of the agreement reducing to writing, and that in a latter from appellant to appellee. Neither party agrees that the writing includes all the elements of the agreement reached in January. The basic differences between the parties arose from appellee's claim that his guarantee of a stand of grass was conditioned on fertilization, weed control and no grazing. Appellant's response was basically that no stand of grass was produced and that the absence of grass was not due to any fault of appellant.

Appellee in his trial pleadings alleged that he and appellant entered into an agreement whereby appellee agreed to plant approximately 155 acres of appellant's land with a stand of coastal bermuda grass for a total payment of $5,000.00. Alternatively, appellee pleaded for recovery of the value of his services and materials on the theory of quantum meruit. He also sought recovery of attorney's fees. Appellant pleaded a general denial and specific defenses, one of which was the existence of an express contract which was not fulfilled through no fault of his own. Trial was before a jury and on the basis of the jury's answer to a single special issue, ¹ the trial court entered judgment that appellee recover from appellant the sum of $4,730.00 plus $1,500.00 as attorney's fees. Appellant's motion for new trial was overruled, and this appeal was perfected.

Appellant's first point assigns as error the trial court's submission of the case to the jury on a theory of quantum meruit. Fundamentally, argues appellant, the pleading and proof offered by appellee (plaintiff below) did not support such submission because appellee also pleaded that he was entitled to recovery based on a contract, and such a recovery is inconsistent with a recovery based on quantum meruit. Appellant's basic position is that since the proof failed to establish the right of appellee to recovery on a contract, he was precluded from electing the remedy of quantum meruit.

Our law is clear that '(w)here there exists a valid express contract covering the subject matter, there can be no implied contract,' and hence no recovery in quantum meruit. Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex.1964); Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427 (1945); Yingling v. Klotz, 193 S.W.2d 742 (Tex.Civ.App.--Waco 1946, writ ref'd, n.r.e.). The complaint seems to be that it would be inconsistent for the appellee to seek what he says he is entitled to under the contract and at the same time seek to recover in quantum meruit what his labor and materials are reasonably worth. It is true that an express contract and quantum meruit are distinct and different relationships and inconsistent ideas, but the same record may contain evidence which will support either theory. A plaintiff may allege both theories and recover as the evidence may show. Clower v. Brookman, 325 S.W.2d 440 (Tex.Civ.App.--San Antonio, 1959, no writ).

In Clower is found this language:

'While one may not allege the one and recover on the other; one may allege both and recover on either, if it is proved.'

Where an express contract is clearly established then there could be no recovery on quantum meruit, and the Woodard v. Southwest States, Inc. line of cases deal with situations where the contract was admitted or stipulated by the parties, or where an express contract was clearly or conclusively established. In the instant case there is some question under the evidence whether there was a meeting of the minds to establish a contract upon which appellee could recover, and, appellee having alternatively alleged quantum meruit, he was entitled to recover on such alternative theory. Clower v. Brookman, supra; University State Bank v. Gifford-Hill Concrete Corp.,431 S.W.2d 561 (Tex.Civ.App.--Ft. Worth, 1968, writ ref'd, n.r.e.).

Appellant did not request special issues raising the question of an express contract (the existence of which was appellant's basic defense), but had appellant done so, and had the jury found the existence of such a contract, a recovery on quantum meruit would have been precluded. Woodard v. Southwest States, supra. Since it is the defendant's duty to request proper issues inquiring into affirmative defenses, we cannot say the trial court erred by not submitting an issue inquring into the existence of an express contract in the present case. Rule 279, Texas Rules of Civil Procedure; Davis Bumper to Bumper, Inc. v. American Petrofina Company of Texas, 420 S.W.2d 145 (Tex.Civ.App.--Amarillo, 1967, writ ref'd, n.r.e.); Schoenberg v. Forrest, 228 S.W.2d 556 (Tex.Civ.App.--San Antonio, 1950, writ ref'd, n.r.e.). Appellant's first point of error is, therefore, overruled.

In his second point of error, appellant complains of the trial court's granting judgment for appellee because appellee was not entitled to any judgment where there were no jury findings as to the existence of a contract. Having found that appellee was entitled to seek alternative recovery under theories of contract and quantum meruit, appellee was not compelled to seek submission of issues inquiring into the existence of a contract. If appellant wished findings on the issue of whether a contract existed precluding recovery on a quantum meruit theory, it was incumbent upon him to request such issues. Davis Bumper to Bumper, Inc. v. American Petrofina Co., supra. Appellant's second point of error is overruled.

Appellant next assigns error in that part of the trial court's judgment awarding attorney's fees to appellee. Appellant's argument is that since this was a suit on an express contract, and since there were no provisions in the contract allowing attorney's fees, it was improper for the court to award attorney's fees. Ezon v. Faulkner Construction Co., 422 S.W.2d 568 (Tex.Civ.App.--Austin, 1967, no writ). First, we have found that appellee's recovery on quantum meruit was proper, thus the provisions of an alleged contract as far as attorney's fees are concerned are immaterial. In addition, Art. 2226, Vernon's...