Eric Randle v. Clint Sanders

IN THE
TENTH COURT OF APPEALS

No. 10-15-00354-CV

ERIC RANDLE,
Appellant
v.

CLINT SANDERS,
Appellee

From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 2015-0182-CV2

MEMORANDUM OPINION

This case involves the validity of a “handshake” agreement made the “cowboy

way” between two experienced team ropers.1 In two issues, appellant, Eric Randle,

argues that: (1) there is no evidence to support the jury’s finding that he entered into a

1As fictional cowboy hero Hopalong Cassidy suggests, agreements made the “cowboy way” are
held to a higher standard. See Hopalong Cassidy’s Creed for American Boys and Girls,
http://www.hopalong.com/creed.htm (last visited Oct. 13, 2016) (stating that, in relevant part: “The highest
badge of honor a person can wear is honesty. Be truthful at all times”; “If you want to be respected, you
must respect others. Show good manners in every way”; and “Only through hard work and study can you
succeed. Don’t be lazy.”).
contract with appellee, Clint Sanders; and (2) because the jury found that the parties

entered into a contract, Sanders is precluded as a matter of law from recovering under

quantum meruit. As shown below, we conclude that a contract did not exist between the

parties; however, Sanders is entitled to recover on his quantum-meruit theory of

recovery. And because the trial court’s judgment generally awards damages and does

not specifically state that the damage award corresponds with a particular theory of

recovery, we affirm.

I. BACKGROUND

Both Randle and Sanders participated in the 2014 World Series of Team Roping

Finale held in Las Vegas, Nevada. The day before the short round of competition,

Randle’s horse “came up lame,” leaving Randle without a horse for the remainder of the

competition. According to Sanders, Randle asked “if he could use the black horse. His

mare was crippled. His horse was crippled.” Sanders responded, “Yeah, yeah, I think

so.” At the time of the request, Randle was “fixing to rope” within the hour.

At trial, Sanders described the agreement between him and Randle as follows:

“Yes, Mr. Randle. ‘Is it okay if I ride Tex?’” Sanders responded, “‘Yeah, if you need him,

let’s put the boots on him.’ So that’s how it went.” Sanders further noted that Randle

did not mention nor attempt to negotiate the “mount money.”

Randle’s recollection of the conversation differed. Specifically, Randle noted that

the “agreement” entailed the following: “I just asked him if he minded if I used his horse

Randle v. Sanders Page 2
and he said, no, he didn’t mind, and he came down and helped me put boots on him, and

gave him some Ace, and that was it. There was no discussion of anything other than,

‘You bet you can use him.’”

Despite having options to ride other people’s horses, Randle decided to ride Tex

for the remainder of the competition. On cross-examination, Sanders admitted that he

did not discuss “mount money” with Randle prior to Randle riding Tex. Randle noted

that he had “no agreement at all” with Sanders with regard to using Tex and that the

parties “didn’t have any contract.” In any event, Sanders testified that he assumed that

Randle “knew that mount money was supposed to be paid when horses were borrowed”

and that the industry custom for “mount money” is 25% of any winnings, though this

custom was merely a “cowboy rule” that is not written down anywhere. In addition, one

of Sanders’s witnesses, Colton Nelson, stated that the amount of “mount money” is

“[n]ormally 20 to 25 percent, I guess . . . .”

Ultimately, Randle won the 2014 World Series of Team Roping Finale while riding

Tex. The prize for winning was $304,000. Randle’s cut of the winnings was $152,000.

Exhibits admitted at trial showed that Randle’s team won an additional $12,000 in other

rounds while Randle rode Tex. These additional winnings increased Randle’s cut to

$158,000.

Randle v. Sanders Page 3
 Upon returning home, Sanders contacted Randle about the “mount money” that

he believed Randle owed him.2 According to Sanders, “mount money” is owed

“normally as soon as possible.” After a conversation, Randle agreed to “get together”

with Sanders at the New Year’s Open roping competition in Salado “to get this deal kind

of squared away.” When Randle did not attend the New Year’s Open roping

competition, Sanders sent Randle an invoice for 25% of the winnings from the Finale.

Thereafter, Randle sent Sanders a check for $10,001 to serve as “a very nice gesture to

show [his] appreciation” for Sanders letting him use Tex for the competition.

Sanders refused Randle’s $10,001 check and filed suit, arguing that the parties’

agreement and custom dictated that Randle pay 25% of his winnings in exchange for

borrowing the horse. Sanders asserted that he was entitled to compensation under

breach-of-contract and quantum-meruit theories. The case was subsequently tried to a

jury.

Sanders testified that he and Randle spoke in the truck before this competition about “mount
2

money.” Specifically, Sanders recounted the following:

Eric was telling us a story that he had a friend who had placed in—just placed in the 12
roping, which I believe was going on that day. And his horse—his friend’s horse had
gotten crippled, and he just needed a horse to ride in the short round for one steer.

And he ended up winning some money in the roping and the owner of the horse
wanted 25 percent just for riding that one—on that one steer, that short round. And we all
kind of talked about it and . . . .

Yeah. I mean, we kind of had a discussion about, well, you know, maybe on one
steer it might have—it might have, should have been a quarter of a quarter or something,
but, you know, usually on all four steers it’s the 25 percent.

Randle v. Sanders Page 4
 At the conclusion of the evidence, the jury determined that the parties had entered

into a contract and that Randle had breached the contract. The jury also concluded that

Sanders was entitled to recovery under his quantum-meruit theory and awarded Sanders

$39,501 for the reasonable value of compensable services at the time and place they were

provided. Thereafter, the trial court adopted the jury’s findings and signed a final

judgment awarding Sanders $39,501 in actual damages. Randle filed motions for new

trial and for judgment notwithstanding the verdict. Both motions were overruled by

operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.

II. WHETHER A CONTRACT EXISTED BETWEEN THE PARTIES

In his first issue, Randle contends that the evidence is legally and factually

insufficient to support the jury’s finding that the parties entered into a contract. We agree.

A. Standard of Review

In reviewing for legal sufficiency of the evidence, we consider the evidence in the

light most favorable to the factfinder’s finding. See AutoZone, Inc. v. Reyes, 272 S.W.3d

588, 592 (Tex. 2008). The test for legal sufficiency “must always be whether the evidence

at trial would enable [a] reasonable and fair-minded [fact-finder] to reach the [conclusion]

under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must credit

favorable evidence if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not. Id. The fact-finder is the sole judge of the

credibility of the witnesses and the weight to be assigned to their testimony. Id. at 819.

Randle v. Sanders Page 5
 In a factual sufficiency review, we must consider and weigh all of the evidence in

a neutral light. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The

evidence is factually insufficient only if we conclude “that the verdict is so against the

great weight and preponderance of the evidence as to be manifestly unjust, regardless of

whether the record contains some evidence of probative force in support of the verdict.”

Id.

B. Applicable Law

The elements for a valid and binding contract are: (1) an offer; (2) acceptance in

strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s

consent to the terms; and (5) execution and delivery of the contract with the intent that it

be mutual and binding. Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth

2004, pet. denied); Labor Ready Cent. L.P. v. Gonzalez, 64 S.W.3d 519, 522 (Tex. App.—

Corpus Christi 2001, no pet.). Consideration is also a fundamental element of every valid

contract. Turner-Bass Assocs. of Tyler v. Williamson, 932 S.W.2d 219, 222 (Tex. App.—Tyler

1996, no writ). The elements of written and oral contracts are the same and must be

present for a contract to be binding. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.—

Tyler 2004, pet. denied); Bank of El Paso v. T.O. Stanley Boot Co., 809 S.W.2d 279, 284 (Tex.

App.—El Paso 1991), aff’d in part, rev’d in part on other grounds, 847 S.W.2d 218 (Tex. 1992).

Where an essential term is open for future negotiation, there is no binding contract. Beal

Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 (Tex. App.—Houston [14th Dist.] 2003, pet.

Randle v. Sanders Page 6
denied); Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 644 (Tex. App.—Corpus

Christi 1984, no writ). In determining the existence of an oral contract, the court looks to

the communications between the parties and to the acts and circumstances surrounding

those communications. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied) (citing Copeland v. Alsobrook, 3 S.W.3d 598,

605 (Tex. App.—San Antonio 1999, pet. denied)). The terms must be expressed with

sufficient certainty so that there will be no doubt as to what the parties intended.

Copeland, 3 S.W.3d at 605. The proponent may prove the contract by either circumstantial

or direct evidence. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App.—San Antonio 2000, pet.

denied).

C. Discussion

Here, we cannot say that the evidence is sufficient to support the jury’s finding

that the parties entered into a valid oral contract for “mount money” in exchange for

riding Tex. As mentioned earlier, the parties’ discussion of the agreement simply entailed

Randle’s request to ride Tex during the roping Finale and Sanders’s acquiescence. More

specifically, the testimony showed that Randle asked, “Is it okay if I ride Tex?,” to which

Sanders responded, “Yeah, if you need him, let’s put the boots on him.” The term

corresponding with “mount money” allegedly to be paid by Randle to Sanders was not

discussed when the agreement was made. Furthermore, Sanders believes that Randle

should pay 25% of his winnings at the roping Finale as “mount money,” whereas Randle

Randle v. Sanders Page 7
argues that the parties had “no agreement at all.” We conclude that the oral agreement

was lacking an essential term and the record reveals that there was no meeting of the

minds with respect to the payment or compensation term. See Hubbard, 138 S.W.3d at

481; Schleider, 124 S.W.3d at 653; Gonzalez, 64 S.W.3d at 522; Gerdes, 666 S.W.2d at 644; see

also T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (“In order to

be legally binding, a contract must be sufficiently definite in its terms so that a court can

understand what the promisor undertook.”). In other words, we cannot say that the

payment or compensation term was expressed with sufficient certainty so that there was

no doubt as to what the parties intended. See Copeland, 3 S.W.3d at 605.

Nevertheless, despite the lack of discussion about the payment or compensation

term, Sanders argues that industry custom sufficiently established that the agreement

required Randle to pay Sanders 25% of his winnings as “mount money.” “A custom is a

practice so general and universal that the parties to a contract are charged with

knowledge of its existence to such an extent as to raise a presumption that they dealt with

reference to it.” Energen Res. MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 556 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied) (citing Barreda v. Milmo Nat’l Bank, 252 S.W. 1038,

1039-40 (Tex. 1923) (stating that the general rule regarding custom and usage, in a case of

contract, is that the custom and usage must be so general that both parties are presumed

to be aware of the custom or usage, or that the parties have actual knowledge of the

custom or usage, and the parties are charged with having contracted with reference to

Randle v. Sanders Page 8
the usage or custom); State Nat’l Bank of Houston v. Woodfin, 146 S.W.2d 284, 286 (Tex. Civ.

App.—Galveston 1940, writ ref’d)). As the Woodfin Court noted:

It has been uniformly held in this State that a custom, in order to constitute
an element of contract, must be either shown to have been known
personally to the parties to the contract, or to have been so general and
universal that the parties are charged with knowledge of its existence to
such an extent as to raise a presumption that they dealt with reference to it.

Woodfin, 146 S.W.2d at 286. “[W]e may consider extrinsic evidence, such as expert

testimony or reference material, to determine whether a contract term enjoys a commonly

understood meaning in the industry.” Va. Power Energy Mktg. v. Apache Corp., 297 S.W.3d

397, 405 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

However, “custom or usage of trade cannot vary, control, impair, restrict[,] or

enlarge the express language of the contract.” Tex. Gas Exploration Corp. v. Broughton

Offshore Ltd. II, 790 S.W.2d 781, 786 (Tex. App.—Houston [14th Dist.] 1990, no pet.) (citing

Miller v. Gray, 136 Tex. 196, 149 S.W.2d 582, 583 (1941); Corso v. Carr, 634 S.W.2d 804, 808

(Tex. App.—Fort Worth 1982, writ ref’d n.r.e.)). Moreover, “‘[u]sage or custom cannot

create or bring a contract into being where without it no contract exists.’” Oxford v. Rogers,

238 S.W. 295, 298 (1921) (quoting 2 ELLIOTT ON CONTRACTS, § 1709)). “‘In other words,

usage or custom cannot make a contract when the parties themselves have made none.’”

Id. (quoting 2 ELLIOTT ON CONTRACTS, § 1709). “[A] custom or course of dealings is

admissible to prove or interpret some of the terms of the contract independently made

but . . . no Texas case establishes that a contract can be based solely on a prior course of

Randle v. Sanders Page 9
dealings.” Galaxy Boat Mfg. Co. v. East End State Bank, 641 S.W.2d 584, 587 (Tex. App.—

Houston [14th Dist.] 1982, no writ) (citing RESTATEMENT (SECOND) OF CONTRACTS § 249

(1972); 13 TEX. JUR. 2D 305; 25 C.J.S. 142, 143; Oxford, 238 S.W. at 298).

Here, Sanders testified that a custom existed whereby a person borrowing a horse

to compete in a team roping event would pay the horse lender 25% of any winnings

earned while riding the horse as “mount money.” Randle disputed the existence of this

custom in the amateur team-roping industry, though Randle apparently told Sanders

about a horse owner who requested that Randle’s friend pay 25% of his winnings in

“mount money” when the friend borrowed a horse for a roping competition.

In any event, given that we have already concluded that a contract between Randle

and Sanders did not exist because there was not a meeting of the minds with respect to

the payment or compensation term, the foregoing case law dictates that we “‘cannot use

custom to bring a contract into being where without it no contract exists.’” Oxford, 238

S.W. at 298 (quoting 2 ELLIOTT ON CONTRACTS, § 1709); see Miller, 149 S.W.2d at 583; Tex.

Gas Exploration Corp., 790 S.W.2d at 786; Galaxy Boat Mfg. Co., 641 S.W.2d at 587; Corso,

634 S.W.2d at 808. And even if we were to apply industry custom to satisfy the payment

or compensation term, we note that Sanders’s evidence does not establish that it is a

general and universal industry custom that 25% is the proper amount of “mount money”

owed in such circumstances. See Woodfin, 146 S.W.2d at 286. Accordingly, we reject

Sanders’s contention that the purported contract can be saved by industry custom with

Randle v. Sanders Page 10
regard to “mount money.” We therefore sustain Randle’s first issue. However, this does

not end our inquiry.

III. QUANTUM MERUIT

In his second issue, Randle asserts that Sanders is precluded from recovering

under quantum meruit as a matter of law because the jury concluded that the parties had

entered into a contract.

Quantum meruit is an equitable theory of recovery intended to prevent unjust

enrichment when there is an implied agreement to pay for goods or services provided.

In re Kellogg Brown & Root, 166 S.W.3d 732, 740 (Tex. 2005); Vortt Exploration Co. v. Chevron

U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); see Bashara v. Baptist Mem’l Hosp. Sys., 685

S.W.2d 307, 310 (Tex. 1985) (noting that quantum meruit is founded on the principle of

unjust enrichment). “Generally, a party may recover under quantum meruit only when

there is no express contract covering the services or materials furnished.” Vortt

Exploration Co., 787 S.W.2d at 944. In other words, a party generally cannot recover under

quantum meruit when there is a valid contract covering the services or materials

furnished. See Murray v. Crest Construction, Inc., 900 S.W.2d 342, 345 (Tex. 1995); see also

R.M. Dudley Construction Co. v. Dawson, 258 S.W.3d 694, 703 (Tex. App.—Waco 2008, pet.

denied).

Unjust enrichment, itself, is not an independent cause of action but rather
“characterizes the result of a failure to make restitution of benefits either
wrongfully or passively received under circumstances that give rise to an
implied or quasi-contractual obligation to repay.” Friberg-Cooper Water
Randle v. Sanders Page 11
 Supply Corp. v. Elledge, 197 S.W.3d 826, 832 (Tex. App.—Fort Worth 2006,
pet. filed) (quoting Walker v. Cotter Props., Inc., 181 S.W.3d 895, 900 (Tex.
App.—Dallas 2006, no pet.)), [rev'd on other grounds, 240 S.W.3d 869 (Tex.
2007)]; Mowbray v. Avery, 76 S.W.3d 663, 679 (Tex. App.—Corpus Christi
2002, pet. denied); see Best Buy Co. v. Barrera, 214 S.W.3d 66, 73 (Tex. App.—
Corpus Christi 2006, pet. filed), [rev'd on other grounds, 248 S.W.3d 160 (Tex.
2007)]. The doctrine applies the principles of restitution to disputes where
there is no actual contract, based on the equitable principle that one who
receives benefits that would be unjust for him to retain ought to make
restitution. Friberg-Cooper, 197 S.W.3d at 832; Mowbray, 76 S.W.3d at 679.
Unjust enrichment is not a proper remedy “merely because it ‘might appear
expedient or generally fair that some recompense be afforded for an
unfortunate loss’ to the claimant, or because the benefits to the person
sought to be charged amount to a windfall.” Heldenfels Bros. Inc. v. City of
Corpus Christi, 832 S.W.2d 39, 42 (Tex. 1992) (quoting Austin v. Duval, 735
S.W.2d 647, 649 (Tex. App.—Austin 1987, writ denied)); Mowbray, 76
S.W.3d at 679. To recover under an unjust enrichment theory, the benefits
to the other party must be actually unjust under the principles of equity.
Mowbray, 76 S.W.3d at 679; Burlington N. R.R. v. Sw. Elec. Power Co., 925
S.W.2d 92, 97 (Tex. App.—Texarkana 1996), aff'd, 966 S.W.2d 467 (Tex.
1998).

Argyle Indep. Sch. Dist. v. Wolf, 234 S.W.3d 229, 246-47 (Tex. App.—Fort Worth 2007, no

pet.).

Earlier, we concluded that the jury’s determination that the parties had entered

into a contract is not supported by sufficient evidence. In effect, we have concluded that

the evidence in the record does not demonstrate that the parties’ agreement constituted

a valid contract. That, however, does not preclude Sanders from being compensated

under his quantum-meruit theory.3 See In re Kellogg Brown & Root, 166 S.W.3d at 740; Vortt

Exploration Co., 787 S.W.2d at 944.

3 We also note the following:

Randle v. Sanders Page 12
 At trial, Sanders noted that “as a rule in our industry, if you go borrow a horse,

it’s 25 percent mount money.” Sanders also recalled a conversation he had with Randle

whereby Randle mentioned a friend who borrowed a horse and was asked to pay 25% of

his winnings as “mount money.” Colton Nelson, a team roper, testified that there are

“unwritten rules” with respect to “mount money” and that the custom is “[n]ormally 20

to 25%” of the winnings on a borrowed horse. Nelson also stated that his friend from

South Carolina told him “25 percent” was a common rate for “mount money.” Another

team roper, Buddy Reed, testified that the “rule of the game when it comes to the business

of mount money” is 25% of the winnings. Reed further noted that a cowboy requesting

to borrow a horse can negotiate something different than 25% of his winnings, but that

agreement must be made before using the horse.

Other roping witnesses, including Greg Miller, Roy Payne and Casey Roberts,

noted that they had never heard of a rule on “mount money.” Payne, in particular,

After the jury has returned its verdict, if the prevailing party obtains a favorable verdict on
inconsistent theories of relief, the prevailing party is entitled to elect under which theory
it wants to recover in the judgment. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
304 (Tex. 2006). If a judgment is reversed on appeal, the losing party can seek to recover
instead on an alternative theory upon which the party prevailed at trial. Boyce v. Iron
Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988); Jerry L. Starkey, TBDL, L.P. v.
Graves, 448 S.W.3d 88, 97 (Tex. App.—Houston [14th Dist.] 2014, no pet. To be entitled to
change the basis for its recovery, however, the party must have prevailed on that theory.
See Boyce Iron Works, 747 S.W.2d at 787; Starkey, 448 S.W.3d at 97.

Holmes v. Jetall Cos., Inc., No. 01-15-00326-CV, 2016 Tex. App. LEXIS 7213, at *20 (Tex. App.—Houston [1st
Dist.] July 7, 2016, pet. filed) (mem. op. on reh’g) (emphasis in original). As stated earlier, the jury found
in favor of Sanders on both his breach-of-contract and quantum-meruit theories of recovery.

Randle v. Sanders Page 13
opined that it is the “cowboy way to just help each other out” and that he was happy

when a borrower of his horse took him to dinner with the winnings. And finally, Denny

Gentry, the owner of the World Series of Team Roping and the founder of the “Bible for

the industry,” “Super Duper Magazine,” testified that in recreational team roping, no

“mount money” is required if you win while riding a borrowed horse. Gentry also stated

that “mount money” is a “non-associational issue,” meaning that the issue is not

addressed in any rules promulgated by the United States Team Roping Championships.

In light of this testimony, there is conflicting evidence regarding the amount of

“mount money” owed, if any, after using a borrowed horse. The jury, as the trier of fact,

bore the burden of resolving the conflicts in this evidence and judging the credibility of

witnesses.4 See City of Keller, 168 S.W.3d at 819-20; see also Khorshid, Inc. v. Christian, 257

S.W.3d 748, 758 (Tex. App.—Dallas 2008, no pet.). Consequently, we must assume that,

where reasonable, the finder of fact resolved all conflicts in the evidence in a manner

consistent with the findings. See City of Keller, 168 S.W.3d at 820; see also Capps v. Gibbs,

No. 10-12-00294-CV, 2013 Tex. App. LEXIS 4931, at *8 (Tex. App.—Waco Apr. 18, 2013,

pet. denied) (mem. op.).

The record reveals that Randle rode Tex for multiple rounds at the roping

competition in Las Vegas over a four-day period and that Randle’s team won a total of

4 In the January 2015 Special Feature of Rodeo News, which reported on the World Series of Team
Roping, Randle stated the following about when he was informed about the 25% “mount money” standard:
“Guess I should be thankful he didn’t demand 50%.”

Randle v. Sanders Page 14
$316,000. Randle’s cut of the winnings was $158,000. The jury determined that the

reasonable value of compensable services provided by Sanders to Randle was $39,501,

which is approximately 25% of $158,000. Based on our review of the record, we cannot

say that the jury was unreasonable in concluding that Sanders is entitled to compensation

in the amount of 25% of Randle’s $158,000 cut of the winnings from the Team Roping

Finale under Sanders’s quantum-meruit theory of recovery. Accordingly, we hold that

the jury’s $39,501 damages award in favor of Sanders is supported by sufficient evidence

in the record. See Reyes, 272 S.W.3d at 592; City of Keller, 168 S.W.3d at 819-20; Jackson, 116

S.W.3d at 761; see also Vortt Exploration Co., 787 S.W.2d at 944; Wolf, 234 S.W.3d at 246-47.

We overrule Randle’s second issue.

IV. CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court.5

5 The trial court’s judgment states, in relevant part:

At the close of evidence, the jury was charged by the Court and upon close of final
arguments, took the case under deliberation. On July 15, 2015, the jury delivered its verdict
in favor of Plaintiff Clint Sanders.

IT IS THEREFORE ORDERED, ADJUDGED AND FINALLY DECREED that Plaintiff
CLINT SANDERS have and recover from Defendant ERIC RANDLE judgment in the sum
of Thirty-Nine Thousand Five-Hundred and One and no/100 U.S. Dollars ($39,501.00).
Post-judgment interest on the amount remaining unpaid shall accrue at the rate of 5% per
annum.

The judgment generally awards damages and does not state that the damage award specifically
corresponds with either the contract theory or the quantum-meruit theory of recovery.

Randle v. Sanders Page 15
 AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring)*
Affirmed
Opinion delivered and filed December 14, 2016
[CV06]

*(Chief Justice Gray generally concurs in the court’s judgment. A separate opinion will
not issue. He notes, however, that he would affirm on the breach of contract theory. The
element of the amount of compensation was provided by evidence of custom and usage.
This evidence was not uncontroverted, but the jury clearly believed Sanders’s witnesses.
It is not my job to second-guess those witnesses or the jury’s determination of which
witnesses was to be believed. The jury was not asked to determine breach of contract
damages because it could be readily computed. The amount of winnings by Randle while
riding Tex was undisputed. The question answered affirmatively by the jury specified a
25% rate for mount money. That calculates to be $39,500. The jury determined the
quantum meruit damages as $39,501. I suspect the $1 difference was the result of Randle
tendering to Sanders a check for $10,001. With these comments, I concur in the court’s
judgment.)

Randle v. Sanders Page 16