ON MOTION FOR REHEARING
PER CURIAM.Respondents call attention in their motion to an aspect of this case alluded to in our opinion but not briefed or argued by the parties prior to the present motion. The subject is an unresolved cause of action for breach of contract. The motion points to Count III of respondents’ original petition filed in the trial court seeking money damages and argues that if the judgment for specific performance is to be reversed, the case should be remanded for disposition of this damage count. That prospect surfaces for the first time in the rehearing motion but requires attention because the elements of the cause in specific performance impairing the validity of the judgment as rendered do not necessarily bar respondents from obtaining alternate relief.
A review of the legal file discloses that respondents did include in their petition an alternate Count III in which a claim was postulated against the estate for damages in the amount of $10,000 calculated as the difference between the then unpaid principal balance of the note in question, some $65,000, and the settlement figure agreed to by Mrs. Wooley, $55,000. This count was in the alternative and was not ruled upon by the trial court because the entry of judgment ordering specific performance rendered the claim moot. The theory of Count III appears to be a cause for breach of contract stemming from the failure of the estate to perform Mrs. Wooley’s undertaking to settle the note balance on a discounted basis. At a minimum, it may be taken that such an agreement between Mrs. Wooley and respondents was proved.
A case instructive in these circumstances is Feigenspan v. Pence, 168 S.W.2d 1074 (Mo.1943). There, the issue was an alleged agreement by the deceased to convey certain real estate to plaintiffs in consideration for services. The conveyance was not made and plaintiff brought suit for specific performance against the heirs who had acquired title by intestate succession. Although the court found specific performance unavailable for a variety of reasons, including inadequacy of pleading and failure of proof that the contract was fair, and reversed the judgment, the case was remanded for pleading and proof of the reasonable value of the services. The theory announced is that once the court has become possessed of the case, plaintiff should not be deprived of all relief merely because the basis for the original judgment is held to be flawed.
Here, there has been no showing, as was the case in Feigenspan, that respondents are entitled to any equitable relief for services rendered or expenses incurred, but the cause of action for breach of contract was at least preserved by the alternative count. They are entitled to a trial on that count and to disposition of their claim under the alternate theory. The case should be remanded for that purpose.
It is to be noted that remand of the case for disposition of the damage count does not constitute an expression of opinion on the question of notice under § 473.360, *450RSMo.Supp.1984, mentioned previously, or on the question of whether the manner of filing the original petition invests the probate division with jurisdiction of a suit for breach of contract. The attention of the parties is directed to § 472.020, RSMo. Supp.1984 and to §§ 478.240 and 478.245, RSMo.1978 and to Webb v. First National Bank and Trust Co. of Joplin, 602 S.W.2d 780, 783 (Mo.App.1980).
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
All concur.