Parks v. Kelley, 5004.
| Decision Date | 13 March 1939 |
| Docket Number | No. 5004.,5004. |
| Citation | 126 S.W.2d 534 |
| Parties | PARKS et ux. v. KELLEY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hutchinson County; Curtis Douglas, Judge.
Suit by W. L. Kelley against Thomas Parks and wife to recover an indebtedness under an alleged specific contract for services or under theory of quantum meruit for services. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment reversed and cause remanded.
J. L. Lackey, of Stinnett, and Joseph H. Aynesworth, of Borger, for appellants.
Boyer, Spivey & McConnell, of Borger, for appellee.
The record in this case shows that appellants for a number of years operated a drug store at Stinnett, in Hutchinson County. In the early part of 1927 they employed appellee as a registered pharmacist. Appellee was engaged in other activities and his entire time was not required at the store. His salary began at $30 per month, which he drew until he removed to California. Some months after his removal appellants induced him to return and resume his employment, agreeing to pay him $50 per month. After working at the latter salary for some time, he was elected district clerk of Hutchinson County, after which practically all of his time was occupied by his duties at the clerk's office. He spent some of his evenings at appellants' store, however, and assisted them in filling prescriptions, making sales, and attending to other duties over quite a period of time. It seems that his salary was raised and diminished at various times as the circumstances and the amount of time he was able to spend at the store warranted. During most of the time he occupied a room in the building belonging to appellants and about the year 1933 appellants furnished him with a six-room apartment in a brick building. During the two years prior to filing the suit appellee assisted at the store evenings and on Sundays, apparently coming and going at will, until a few weeks before the suit was filed when appellants sold the store.
Appellee filed this suit against appellants on the 16th of September, 1937, the petition being in two counts, the first setting up an indebtedness under a specific contract of $960, due him as salary from January 1, 1935, to August 1, 1937, at the rate of $30 per month. The second count of the petition alleges in the alternative an indebtedness of $960, which he claims appellants owe him upon the theory of a quantum meruit, representing the reasonable value of his services as pharmacist in their store over the period mentioned.
Appellants answered by the general issue and set up a specific agreement by which they alleged appellee agreed to devote to the drug store such time as he was able to spare from his duties at the clerk's office, in consideration of which appellants agreed to furnish him living quarters in the apartment owned by them. They alleged the apartment was furnished, the contract fully performed, and that they did not owe appellee any sum whatever.
The case was tried before the court without the intervention of a jury and resulted in a judgment in favor of appellee in the sum of $675, from which appellants have perfected an appeal.
The recitals in the judgment indicate the trial court ignored the allegations of appellee setting up a contract and rendered the judgment upon the alleged quantum meruit for personal services rendered by appellee to the appellants extending over the period beginning September 16, 1935, and ending August 1, 1937, at the rate of $30 per month. Appellants challenge the judgment of the court upon a number of grounds, one of which is that neither the pleading nor the evidence was sufficient to constitute a basis for any judgment in favor of appellee.
Referring to the first count in the petition which declared upon an alleged contract, we have carefully read the entire statement of facts and, in our opinion, the trial court properly ignored the allegations seeking recovery upon a specific...
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Pioneer Cas. Co. v. Bush
...dism., judg. cor.); Mercury Life and Health Company v. De Leon, 314 S.W.2d 402 (Tex.Civ.App., Eastland, 1958, ref., n.r.e.); Parks v. Kelley, 126 S.W.2d 534 (Tex.Civ.App., Amarillo, 1939, n.w.h.); Slaughter Cattle Co. v. Pastrana, 217 S.W. 749 (Tex.Civ.App., El Paso, 1920, dism., w.o.j.). T......
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Dakoff v. National Bank of Commerce
...such finding; Kuhlmann's Estate v. Poss, Tex.Civ.App., 220 S.W. 564; Pearson v. Laws, Tex.Civ.App., 174 S.W.2d 62; Parks v. Kelley, Tex.Civ.App., 126 S.W.2d 534; 58 Am.Jur. 560. And, further, that on that portion of the claim for money spent for bus and streetcar fare, the statement of fact......
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Air Conditioning, Inc. v. L. E. Travis & Sons, Inc., 12893
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Pearson v. Laws, 9390.
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