Whitney v. Parish of Vernon

• Decision Date: 05 February 1913
• Parties: WHITNEY v. PARISH OF VERNON.
• Court: Texas Court of Appeals

154 S.W. 264

WHITNEY v. PARISH OF VERNON.

Court of Civil Appeals of Texas. Galveston.

February 5, 1913.

Rehearing Denied February 20, 1913.

Error to District Court, Jefferson County; L. B. Hightower, Judge.

Action by the Parish of Vernon against William C. Whitney. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

W. B. Williamson, of Lake Charles, La., and Smith Crawford & Sonfield, of Beaumont, for plaintiff in error. Sidney I. Foster, of Leesville, La., and Thos. J. Baten, of Beaumont, for defendant in error.

PLEASANTS, C. J.

This suit was brought by the parish of Vernon, in the state of Louisiana, against William C. Whitney to recover upon a judgment for $4,644 in favor of the parish against said Whitney, rendered by the district court of said parish on May 12, 1909. The suit in which this judgment was rendered was brought by Whitney against the parish to recover upon a contract for the construction of a courthouse for said parish. The plaintiff in said suit sought to recover, in addition to the damages alleged to have been sustained by him in loss of profits by reason of the breach of the contract by defendant parish, the sum of $12,692.19, which he alleged to be the amount expended by him for material furnished and labor performed under said contract prior to its breach by the defendant, and of which the defendant had received the benefit. The defendant parish answered that the contract made by it with the plaintiff and upon which the suit was brought was void, because it was not made in accordance with the law authorizing said parish to enter into a contract for the construction of a courthouse, and the officers of the parish who made the contract with the plaintiff were not authorized by law to make such contract. Said defendant also pleaded in reconvention, and asked judgment against the plaintiff for the sum of $10,000, the alleged value of the material in the old courthouse of said parish, which was torn down and the material therein removed and appropriated by plaintiff, Whitney. The trial of this suit in the district court resulted in a judgment in favor of the parish, sustaining its plea that the contract sued on was executed without legal authority and was therefore void, and adjudging that plaintiff take nothing by his suit, and that defendant recover against plaintiff on its plea in reconvention the sum of $10,000. Upon appeal by the plaintiff, Whitney, to the Supreme Court of the state of Louisiana (126 La. 13, 52 South. 176), that court affirmed the judgment of the district court, except as to the amount adjudged in favor of the parish on its plea in reconvention, which amount was reduced by the judgment of the Supreme Court to the sum of $4,644.

Whitney is a resident of the county of Jefferson, in this state, and, as before shown, the suit from which this appeal is prosecuted was brought by said parish in the district court of said county to recover the amount due upon the judgment above described. The defendant, Whitney, answered by general demurrer and general denial, and by plea in reconvention sought to recover on a quantum meruit the reasonable value of the material and labor furnished by him to the plaintiff, and which plaintiff received and appropriated to its use and benefit in the construction of its courthouse. The reasonable value of the material and labor so furnished by defendant to plaintiff is alleged to be the sum of $12,692.16, and the itemized statement of said material and labor is identical with the statement contained in the petition filed by the plaintiff, Whitney, in the suit brought by him in the Louisiana court before mentioned. In reply to this plea in reconvention, the plaintiff below filed pleas of res adjudicata and election of remedies. The trial in the court below, without a jury, resulted in a judgment in favor of the plaintiff.

There is no conflict in the evidence, and, in addition to the facts before stated, it appears from the evidence that in the suit brought by Whitney in the Louisiana court there were no allegations in his petition which would sustain a recovery on a quantum meruit for the work and material furnished by him in the construction of the courthouse for the defendant parish. No evidence was offered in said suit as to the reasonable value of said work and material, and the opinion filed by the district judge in that case shows that the question of plaintiff's right to recover upon a quantum meruit was not in the case. The record of the trial of the case shows that the defendant parish objected to "any evidence being offered to show quantum meruit," and thereupon counsel for plaintiff, Whitney, expressly disclaimed any right to recover under his pleadings upon a quantum meruit, and the trial judge ruled that no evidence could be offered upon that issue. No part of the judgment for $4,644 rendered in said cause against Whitney has been satisfied, and it is a valid and subsisting judgment. The trial judge found that the value of the labor performed and the material furnished by Whitney, "which was accepted by the parish of Vernon, and which I find was used by the said parish of Vernon in constructing and building the courthouse, after the said Whitney had been prevented from further proceeding with his contract with the said Parish of Vernon," was $10,994.79.

Under appropriate assignments of error appellant, or plaintiff in error, complains of the judgment of the court below, upon the ground that, upon the facts shown by the undisputed evidence, neither the plea of res adjudicata nor the plea of election of remedies was available as a defense to his plea in reconvention. We think these assignments should be sustained. It is clear from the evidence that appellant's right to recover upon a quantum meruit was not and could not, under the pleadings, have been adjudicated in the former suit. This being so, it follows that the judgment in the former suit does not support the plea of res adjudicata.

The petition of plaintiff in the former suit declared upon an express contract, and there is no rule of decision more firmly fixed than that upon a petition of this kind proof of an implied contract is not admissible. In the case of McGreal v. Wilson, 9 Tex. 429, our Supreme Court says: "If there has been anything settled by this court, it is that the allegata and probata must correspond and agree; and no verdict or judgment can be sustained, unless there has been an averment to let in such evidence. Mims v. Mitchell, 1 Tex. 443; Harrison v. Nixon, 9 Pet. 503 . The express contract being the only one set out and averred in the petition, evidence to support an implied contract could not be received. It would be a variance from the allegata. Storey on Contracts, §§ 12, 13, and 15; Chitty on Contracts, 25; Harrison v. Nixon, 9 Pet. 503."

In Nunn v. Townes, 23 S. W. 1117, the Court of Appeals for the Fourth district says: "Appellees declared upon an express contract, and there is no plainer rule of law than that they must be held to their allegations; and proof of an implied contract will not sustain the allegations. Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613; Krohn v. Heyn, ...