On Rehearing.
In the original opinion we said: “We have not considered the possibility of the plaintiff’s recovery on the basis of a quantum meruit. No such alternative cause of action is presented by the pleadings,” etc. This was not strictly accurate, if the alternative plea to the effect that if a 5 per cent, commission was not agreed to be paid, then a reasonable commission was to be paid which was alleged to be 5 per cent., may properly be called a quantum meruit. However, no question arose on that plea. What we meant by the language quoted was that plaintiff alleged an express contract of employment to procure a purchaser for the ranch, not a part of the ranch, or an undivided interest therein. There was no basis in the pleadings for recovery of a reasonable commission for procuring the sale of a part interest in the ranch, upon failure to prove that he procured a purchaser of the entire ranch. Had plaintiff proved his allegations of an employment (duly authorized) to procure a purchaser for the ranch, but had failed to prove an express agreement to pay a commission of 5 per cent., he could upon proof of a reasonable commission for his services have recovered same under his alternative plea. But whether he proved an express agreement to pay a commission of 5 per cent., or a reasonable commission, he could not recover anything under his pleadings if he failed to prove that he had procured a purchaser for the ranch. In other words, he alleged no alternative cause of action enabling him to recover as upon a quantum meruit, for procuring a purchaser of a half interest in the ranch.
The rule we have in mind was applied in Evangelical Lutheran Bethel Church v. Love (Tex.Civ.App.) 243 S.W. 616, where it was held that one pleading a specific contract only cannot recover on a quantum meruit, that is, for a partial performance of the duties assumed by him under the contract.
Upon the question of remanding the case instead of rendering judgment for appellant, we have nad occasion since the *243writing of the opinion to make a thorough study of that question in another case, and to express our views in an opinion on motion for rehearing regarding applicable statutes and legal principles. Williams v. Safety Casualty Co. (Tex.Civ. App.) 97 S.W.(2d) 729. In that case we expressed the conclusion that the test by which to determine the duty of a Court of Civil Appeals to remand a case rather than to render judgment is whether “it is necessary that some matter of fact be ascertained or the damage* to be assessed or the matter to be decreed is uncertain.” R.S.1925, art. 1856. By that test, applied to the record in the instant case, we have no discretion, we think, to remand for a new trial.
The motion for rehearing is overruled.