concurring in part; dissenting in part.
*181I concur in that part of the majority opinion which concludes that plaintiff did not sustain his burden of proof that he and defendant Dennis Goltz had formed a partnership with respect to the property in question. However, I do not agree that, on the basis of the pleadings and record in this case, we should remand the case for what amounts to a new and different trial on two causes of action neither pleaded nor orally asserted by plaintiff below until after the trial court had rendered its decision with respect to the partnership claim.
Plaintiffs complaint alleged that he and defendant entered into a partnership whereby they agreed to purchase and improve certain real property and that plaintiffs contribution to the partnership was to be in the form of cash and services as an architect in the design of the building, which was virtually completed when the complaint was filed. He prayed for a decree appointing a receiver, dissolving the partnership, ordering an accounting between the parties and for equal division of the profits after payment of all liens and charges; included in the prayer was the usual phrase “and for such other further relief as may be justified in the premises and for his costs and disbursements.”
In his answer, defendant denied the existence of any partnership and, as a first affirmative defense, alleged that defendant hired plaintiff to design and supervise construction of a commercial building located on the real property in question and that whatever services plaintiff rendered were not related to any partnership agreement. Defendant also asserted a counterclaim seeking damages for negligence of the plaintiff in performing the architectural services. Plaintiff generally denied all of the allegations in defendants’ affirmative defenses and counterclaim.
Approximately ten days before the case was originally scheduled for trial, plaintiff took the deposition of an adverse witness. There was a discussion on the record between counsel for the parties as to what issues were to be tried and, therefore, inquired into during the deposition. Plaintiffs counsel indicated that he thought there was the partnership issue and the issue of the value of plaintiffs *182services, if the first issue was resolved against plaintiff. Defendants’ counsel said the only issue pleaded was that relating to the partnership, to which plaintiffs counsel replied that he thought plaintiff had amended his complaint to cover the alternative theory. Defendants’ counsel pointed out that no such amendment had been made and that he thought it was too late to do so at that time. Plaintiffs counsel then stated: “Okay. Then we will try the issue strictly of the partnership.”
Shortly thereafter, defendants voluntarily dismissed their counterclaim for negligent performance of architectural services, and the case went to trial solely on the question of whether or not there was a partnership between the parties. Plaintiffs closing argument to the court was limited solely to the partnership issue, and it was not until after the trial court submitted to counsel its proposed general findings and conclusions, in which the court found that plaintiff had not established the existence of a partnership but concluded sua sponte that plaintiff was entitled to be compensated $27,705.50 for services rendered and costs incurred, that the question arose.
Defendants filed objections to the proposed findings and conclusions on the ground that the issues relating to the value of plaintiffs services or costs incurred by him were not raised in the pleadings or tried as issues during the course of the trial. Plaintiff then filed a “Motion to Allow Additional Evidence.” The trial court denied the motion, sustained defendants’ objections to the original proposed findings and conclusions, filed amended general findings and conclusions to the effect that plaintiff had not established by the required quantum of evidence that he was entitled to any of the relief prayed for, and entered a judgment order accordingly.
In this court, plaintiff asks us to reverse the amended findings and conclusions, to affirm that portion of the original findings and conclusions granting plaintiff the sum of $27,705.50 as reasonable compensation for his architectural services and as reimbursement of unpaid costs “with a remand of the case to trial court to take additional testimony to find the reasonable value of plaintiffs architectural services.”
*183The majority recognizes the well-established rule that, even though relief which a court of equity may grant may be broad, it is confined to issues raised by the pleadings. Coughanour v. Hutchinson, 41 Or 419, 69 P 68 (1902). However, it apparently concludes that a prayer for general equitable relief and for recovery of costs and disbursements is sufficient to support either a claim in quantum meruit or implied contract and also for money had and received. That, however, is not the law as I understand it. Even in lien foreclosure cases, where the plaintiffs claim is clearly for money (to be collected by foreclosure of the lien), if the lien is determined to be invalid for any reason, the plaintiff may proceed by way of quantum meruit or implied contract only if the complaint, in addition to asserting the lien claim, states a cause of action for labor performed or materials supplied. Ward v. Town Tavern et al, 191 Or 1, 35, 228 P2d 216 (1951). The rule set forth in Ward has been the law for some time, and the sense of it is incorporated in ORS 87.060(2) and (3).1 See B & D Investment v. Petticord, 48 Or App 345, 617 P2d 276, rev den 290 Or 302 (1980); Betz Construction v. Peterson, 47 Or App 333, 337, 614 P2d 1184, rev den 289 Or 677 (1980).
The majority relies on language quoted from Emrich v. Emery et al, 216 Or 88, 95, 332 P2d 1045 (1958), 335 P2d 604, 337 P2d 972 (1959). The facts and issues in Emrich are lengthy and complex. For our purposes, it is enough to say that the plaintiff was seeking foreclosure of real and chattel mortgages, together with a deficiency judgment against defendant Emery and Emrich Furniture Co. Defendant Emery *184made numerous contentions, among which was that he was entitled to offsets against plaintiffs claims by virtue of costs he had incurred in improving the Emrich Furniture Co. property. Although the opinion does not set forth what the pleadings alleged, the original opinion in Emery stated:
«* * * Thg defendants’ answer, in addition to the obligations previously mentioned, contains averments seeking to require plaintiff and company to account for amounts defendants allege are due to them. This, together with a prayer for general relief, is sufficient to enable the court to make this determination. * * *” 216 Or at 95.
The original opinion was followed by two opinions on petitions for rehearing. On the second petition, plaintiff contended that the offsets which the court had originally allowed defendants Emery against the Emrich Furniture Co. should not be allowed as an offset against the indebtedness due the plaintiff. The court stated in response:
“* * * As indicated in our original opinion, the transactions and accounts of these three parties were so hopelessly interwoven that it was-impossible to disentangle the web they had woven for themselves. A further review of the pleadings and evidence confirms our original belief that there is little to distinguish between the plaintiff Emrich as an individual and the defendant Emrich Furniture Co., his alter ego, as a separate entity. For this reason it was our belief, and still is, that the indebtedness due defendants Emery from the Emrich Furniture Co. should be applied on the amounts found due from these defendants to the plaintiff.” 216 Or at 103-04.
As I understand the various opinions in Emrich, defendant Emery had asserted in his pleadings that he was entitled to a setoff against plaintiffs claims for amounts he had expended for the benefit of Emrich Furniture Co., also a defendant. The trial court found that Emery was not entitled to that offset. The Supreme Court disagreed, but the record was insufficient to determine what the setoff should be; therefore, the case was remanded to the trial court for additional testimony to determine the reasonable value of the labor and materials supplied by defendants for which nothing had been paid.
Here, it is clear that plaintiff did not assert, and did not intend to assert, anything other than a claim that *185the parties had entered into a partnership. Counsel for the parties agreed during a deposition shortly before trial that the issue of the existence of a partnership was the only thing that would be tried. It was the only issue which was tried or argued in the trial court. It appears that plaintiff decided as a matter of tactics that making the alternative claim would tend to weaken his partnership claim. In my opinion, the trial court properly found that no other issues were presented which would permit an award of damages to plaintiff.
The result of the majority opinion is a remand of this case for a new trial on new claims: one based on either quantum meruit or an implied contract, and the other on a claim for money had and received. Presumably, defendant would be entitled to reallege his counterclaim for damages alleged to have resulted from plaintiffs negligence in performing architectural services. That kind of remand is not just for additional evidence; it is for a separate trial on new claims.
Accordingly, I dissent from that disposition of the case.
ORS 87.060(2) and (3) provide:
“(2) In suits to enforce the liens created by ORS 87.010, the court shall allow or disallow the lien. If the lien is allowed, the court shall proceed with the foreclosure of the lien and resolve all other pleaded issues. If the lien is disallowed, and a party has made a demand for a jury trial as provided for in subsection (3) of this section, the court shall empanel a jury to decide any issues triable of right by a jury. All other issues in the suit shall be tried by the court.
“(3) A party may demand a trial by jury of any issue triable of right by a jury after the lien is disallowed, if that party serves a demand therefor in writing upon the other parties at any time prior to commencement of the trial to foreclose the lien. The demand shall be filed with the court. The failure of a party to serve a demand as required by this rule shall constitute a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.”