Thames v. Clesi

• Decision Date: 12 December 1918
• Docket Number: (No. 402.)
• Parties: THAMES v. CLESI et al.
• Court: Texas Court of Appeals

208 S.W. 195

THAMES v. CLESI et al.

(No. 402.)

Court of Civil Appeals of Texas. Beaumont.

December 12, 1918.

Rehearing Denied January 8, 1919.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Suit by T. W. Thames against J. A. Clesi and others. Judgment for defendants by direction, and plaintiff appeals. Affirmed.

Smith & Crawford and B. F. Pye, all of Beaumont, for appellant.

Orgain, Butler & Bolinger, of Beaumont, for appellees.

BROOKE, J.

On May 25, 1915, appellant filed his petition in the county court at law of Jefferson county, seeking a recovery against appellees for material furnished and labor done in September, 1914, under a contract entered into on July 24, 1914, to furnish material, and to place one inch or one and one-eighth inch floor tile, with border, in the Crosby House Barber Shop, in the city of Beaumont, for the sum of $288, which work was to be done in a neat and workmanlike manner. On December 10, 1917, appellant filed his second amended original petition, wherein he pleaded the said contract, and the furnishing of said material and the performance of said labor, and prayed for a judgment in the sum of $288, the contract price, and for the sum of $20 as attorney's fees. Alternatively appellant prayed that —

"If it should appear upon the trial of this cause that plaintiff did not substantially comply with said contract, then and in that event plaintiff prays that he recover against defendants, and each of them, whatever amount it should appear that his labor and material furnished was reasonably worth on quantum meruit basis."

Appellees urged special exceptions, as follows: (1) To appellant's prayer for the value of services rendered on quantum meruit, urging that the same was barred under the statute of two years' limitation; (2) that an action upon quantum meruit would not lie in favor of appellant because of the fact that an action was sought upon an express contract, and that a recovery on quantum meruit basis could be only in the event there is no written or express contract, and no recovery in law could be had upon an implied contract based on quantum meruit where plaintiff has failed to comply with the terms of an express contract.

The court sustained the two special exceptions urged by appellees, and, after hearing the evidence and argument of counsel, peremptorily instructed the jury to return a verdict in favor of the appellees, defendants below, because of the fact that, as a matter of law, appellant had failed to show strict compliance with the contract; to which action of the court appellant duly excepted in open court, and has properly perfected his appeal to this court.

At the outset appellees object to the consideration of appellant's first assignment of error because such purported assignment is not in accordance with rules 24 and 25 (142 S. W. xii), in that such purported assignment of error does not distinctly specify the grounds of error, and does not particularly set forth the error complained of.

The assignment seems to be simply this: That the court erred to the prejudice of plaintiff in sustaining defendants' plea of limitation to plaintiff's cause of action on quantum meruit. It does not affirmatively appear in what way error was committed, if any, and is too general in its terms, etc. Complaint is also made that the first proposition is not germane to the first assignment of error, and that the proposition is simply an abstract statement of the law, and as such ought not to be considered by the court; and complaint is made also of the consideration of appellant's first proposition under the first assignment for the reason that it is urged there is not any sufficient statement thereto; that the statement thereto is not sufficient to explain and support the proposition.

This court has adopted a liberal rule with reference to the briefing of cases, and we are not disposed to be technical in that respect. Therefore the first assignment will receive our attention.

It is urged with respect to the first assignment of error that appellant not having alleged and set out facts constituting a cause of action on the basis of quantum meruit in a separate count, in the alternative, in a suit on an express contract, there could be no recovery on a basis of quantum meruit. Paragraph 1 of the petition sets out that appellant entered into a contract with appellees to furnish material and labor in laying a tile floor in defendants' barber shop; the material was to be one and one and one-eighth tile, with border, work to be done in a neat and workmanlike manner, for the sum of $288. In paragraph 2 of the petition appellant sets out that he performed the work according to the contract, and that the appellees owed him $288, with 6 per cent. interest from January 1, 1915, and asked for $20 attorney's fees. In the prayer for relief, concluding his prayer, appellant prayed that if it should appear that plaintiff did not substantially comply with said contract, then and in that event plaintiff prayed that he be permitted to recover against appellees and each of them whatever amount it should appear that his labor and material furnished was reasonably worth on quantum meruit basis.

The cases of Jones v. Holtzen, 141 S. W. 121, Morrison v. Bartlett, 131 S. W. 1146, Broussard v. South Texas Rice Co., 120 S. W. 587, Felton v. Talley, 31 Tex. Civ. App. 336, 72 S. W. 614, and Wanhscaffe v. Pontoja, 63 S. W. 663, hold that a cause of action on a quantum meruit is different from a cause of action on an express contract, and that unless these causes of action are pleaded in the alternative, or different counts, evidence cannot be introduced on that cause of action not so pleaded, nor would a judgment on either of such causes of action be sustained unless that particular cause of action is so pleaded; and it is not sufficient that there is a mere plea in the prayer for relief in the alternative, but that a cause of action shall be raised by separate counts specially pleaded, as a basis for the prayer in the alternative; for, unless there was a plea as a basis for such prayer, there would be a prayer without a basis in the plea. An examination of plaintiff's petition will show that there was no separate count or pleading in the alternative raising the question of a recovery on the basis of quantum meruit, but a declaration only upon an express contract, with a prayer in the alternative for a recovery on the basis of quantum meruit, in the event the court should find there was not a substantial compliance with the contract, which prayer has no basis in plaintiff's pleading, and is supported by no count. The court having sustained appellees' exceptions to appellant's purported plea on the basis of quantum meruit, on the ground that the bar of two years' statute of limitation had run against such purported plea at the time of filing it, there was, in our opinion, no error in the court's refusal to consider such purported pleading on quantum meruit. See G. R. Scott, Boone & Pope v. Willis, 194 S. W. 220; S. A. & A. P. Ry. Co. v. Bracht, 157 S. W. 269; M., K. & T. Ry. Co. v. Ryan, 170 S. W. 858; Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707; Booth v. Packing Co., 105 S. W. 46. In the case of G. R. Scott, Boone & Pope v. Willis, supra, on July 27, 1916, more than two years after the cause of action had accrued, appellant filed a second amended petition, and, in addition to declaring on an express contract as against the Sidbury Lumber Company and Byron Willis, appellant set up in the alternative an implied contract to pay the attorney's fees. That part of the pleading as to the implied contract was accepted to as being barred by the statute of limitation of two years, and the exception was sustained. The party appealing assigned error to the holding of the court, and it was held that these were two separate and distinct causes of action, and that the pleading that would support one would not support the other, and the statute of limitation had run against the plea on an implied contract, and that the exception was properly sustained. In the case of S. A. & A. P. Ry. Co. v. Bracht, supra, the court set out its reasons at length that a suit upon an express contract is different from a suit on a quantum meruit or an implied contract, and that the proof that will sustain the one will not sustain the other, and that inasmuch as they are different causes of action, and demand different character of proof, a failure to plead one until after the two years' statute of limitation has run, where an exception raising the question of limitation is presented, such exception will be sustained and a recovery will be barred. Such seems to be the ruling opinion in Phœnix Lbr. Co. v. Houston Water Works, supra and in M., K. & T. Ry. Co. v. Ryan, supra. The appellant did not, in a separate count, allege a cause of action on the basis of quantum meruit; but in his prayer for relief prayed that, if the court found there had not been a substantial compliance with the contract, then and in that event he be permitted to recover the reasonable value of his labor and material furnished. The cases set out above all hold that it takes a different character of proof to sustain a plea on an express contract from that to sustain a plea on an implied contract or on the basis of quantum meruit. A contract having been entered into on July 24, 1914, and plaintiff not having sought a recovery on a prayer for a recovery on the basis of quantum meruit until December 10, 1917, the statutory period of two years' limitation had run against such cause of action, if any he had, and the same was barred and the court properly sustained the defendants' exception to the purported plea of quantum meruit filed at too late a date by plaintiff.

We have diligently gone over the authorities cited by appellees supporting the principles announced, and we are of opinion that the action of the lower court was...