Jones v. Brazile

1 White & W. 121

Opinion

Opinion by

Willson, J.

§ 299. In suit upon a contract, quantum meruit not recoverable. Suit was brought on an account due for services “as per contract.” The evidence proved the services rendered as claimed, but proved at the same time that the services were performed without any contract or understanding between the parties as to the amount of pay plaintiff was to receive. In other words, plaintiff sued upon a specific contract, and, failing to pi’ove such contract, has recovered upon a quantum meruit. This is error. The plaintiff must recover, if at all, upon the cause of action declared upon. [Gammage v. Alexander, 14 Tex. 414; Chrisman v. Miller, 15 Tex. 160; Denison v. League, 16 Tex. 406; Lemmon v. Hanley, 28 Tex. 219; Hall & Jones v. Jackson, 3 Tex. 305.]

October 28, 1882.

Reversed and remanded.