dissenting:
I respectfully dissent.
The majority opinion correctly and concisely states the Texas law on recovery under quantum meruit. I differ with the majority on the application of that law to the facts of this case. The right to recover in quantum meruit is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. If a valid express contract covering the subject matter exists, there can be no recovery under quantum meruit. The existence of an express contract, however, does not preclude recovery in quantum meruit for the reasonable value of the services rendered and accepted which are not covered by the contract. The central issue, then, is whether the work performed by Carlson was within the scope of its non-exclusive distributorship contract with Infra-Pak. That agreement requires Carlson to “use its best efforts to promote, market, and sell InfraPak products.”
*867The majority interprets this provision narrowly as simply requiring Carlson to use its best efforts as a distributor to promote and market machines that it has already purchased from Infra-Pak. In my view, this limitation of Carlson’s distributorship obligations is not supported by the plain language of the contract or by common sense. To me, it makes less sense to interpret the broad language of the agreement as imposing upon Carlson a requirement to use its best efforts to promote and market only those machines that it has already purchased than it does to interpret that language as requiring Carlson to use its best efforts to promote, market and sell Infra-Pak products generally.
This contract, besides defining Carlson’s work obligation, also covers Infra-Pak’s right to sell directly to customers. The contract specifically gives Infra-Pak “the right to sell to others at wholesale, retail and otherwise.” The contract, on its face, thus provides for Infra-Pak to sell directly to a customer, even though Carlson may have used its best efforts to close a sale with the same customer. The possibility that Carlson might work diligently on a sale, only to have the customer elect to deal directly with the manufacturer, was inherent in the non-exclusive distributorship contract entered into between Infra-Pak and Carlson. The contract could have provided for some type of compensation for Carlson in that situation. It did not. Testimony of Infra-Pak’s regional sales manager indicates that Infra-Pak does not pay finder’s fees to distributors: “if it’s a distributor, we only sell to them.” It is clear, therefore, that the omission in the contract of some type of compensation for a distributor in Carlson’s situation was intentional. I do not think that Texas law would permit Carlson to circumvent the compensation provisions of the existing contract and recover in quantum meruit. When we permit that recovery, we in effect rewrite the contract for the parties. Respectfully, I would decline to do that.
The kind of work that Carlson performed in this case is exactly the kind of work that a distributor does. It included an initial sales visit to Liberty Glass to sell an InfraPak stretch wrapping machine, follow-up telephone calls and sales visits to sell the same product and sales quotes on an InfraPak Spider Automatic 10 stretch wrapping machine. In my view, none of this work can be considered outside the scope of the contract; it falls clearly within Carlson’s undertaking as a distributor of Infra-Pak products to use its best efforts to promote, market and sell those products.
I would reverse.