Morrison v. Bartlett
| Decision Date | 16 December 1910 |
| Citation | 131 S.W. 1146 |
| Parties | MORRISON v. BARTLETT et al. |
| Court | Texas Court of Appeals |
Appeal from Williamson County Court; T. J. Lawhon, Judge.
Action by John T. Bartlett and another against G. W. Morrison. Judgment for plaintiffs, and defendant appeals. Affirmed.
J. V. Morris, for appellant. Stanton Allen and Wilcox & Graves, for appellees.
Appellees brought this suit to recover of appellant $384.75, alleged to be due as commissions on the sale of a tract of land. Judgment for appellees for $250.
Appellant's first assignment of error is as to the action of the court in overruling his special exception to that portion of appellees' petition wherein it is alleged that they advertised the land of appellant. If there was error in this, it was harmless, inasmuch as it is not made to appear that any evidence as to such advertisement was offered by appellees, and no reference is made to the same in the charge of the court.
Appellant's second assignment of error is as to the action of the court in overruling his exception to that part of appellees' petition which undertakes to plead a quantum meruit after having plead a special contract. While it is true that if one declares only on a special contract he cannot recover upon quantum meruit, and vice versa, it is also true that under our practice one may allege in the alternative, and in separate counts, different grounds of recovery, and will be entitled to judgment if he prove either by legal evidence to the satisfaction of the court or jury trying the case. We think the facts constituting an implied contract are sufficiently pleaded by reference to and adoption of facts set out in that portion of the petition which attempts to set out a special contract in reference to the sale of said land.
Appellant's remaining assignments of error complain of the action of the court in submitting the case to the jury on quantum meruit. As the issue was raised by the pleading, the court did not err in submitting the same to the jury.
Finding no error in the record, the judgment herein is affirmed.
Affirmed.
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