(dissenting).
This appeal is from a $33,591.37 judgment of the 61st District Court of Harris County, sitting with a jury, in favor of the appellees, Randolph and Butler, against the appellants, Ned Gill, an individual person, and Ned Gill Building Corporation, a .private corporation, jointly and severally, in response to a jury’s verdict on spécial issues of. fact.
The suit was an action by the appellees, Randolph and Butler, attorneys, against the appellants, Ned Gill and Ned Gill Building Corporation, for attorneys’ fees for alleged professional. services rendered the latter by the fofmer. The material issues of fact, as deemed by the court, were submitted in these two inquiries:
No. 1. “Do you find from a preponderance of the evidence that the defendant Ned Gill after the settlement of the suit styled Ned Gill Building Corporation v. Continental Oil Company agreed to pay plaintiffs a fee in the sum of $23,333.33 when defendant Ned Gill sold the stock of the Building Corporation P ■
“Answer ‘Yes’ or ‘No".”
No. 2. “What sum of money, if any, do you find from a preponderance of the evidence to be a reasonable attorney’s fee for legal services rendered by plaintiffs, Nowlin Randolph and William B. Butler, in the preparation, trial, and settlement of the suit styled Ned Gill Building Corporation v. ■Continental Oil Company?
“Answer giving1 the amount, if any, in 'dollars and cents.” '
■ ■ The jury answered No. 1 “Yes”, and No. 2 “$24,150.00.”
There was a third issue propounded concerning the fees of appellees’ attorney, which is not deemed material to the purpose of this opinion. The record conclusively shows that the court’s judgment was not rendered on the answer to special issue No. 1, but was based upon that in response to issue No. 2, which the record shows had to do with the appellees’ claimed cause of ¿ction against the corporation they had represented in the Federal Court suit; i. e., the Ned Gill Building Corporation, and clearly, if not necessarily, had no reference to the appellant, Ned Gill, personally, or in his individual capacity; in other words, this joint and several judgment so .rendered here against both the Ned Gill Building Corporation and against Ned Gill personally, was unsupported in the record, and improper as to the latter.
Furthermore, there were no issues submitted or requested, as to whether or not the appellees performed their legal services “at the instance and request of Ned Gill in his individual capacity”; neither, -in this member’s opinion, could the judg*536ment against him- as such be based on any claim of theirs of an implied contract of a quantum meruit nature, since, as indicated, the appellees declared against the Ned Gill Building Corporation on its contract to pay them, which Ned Gill signed only in his official capacity as president of that corporation, and not as an individual. The rule of law on this subject is thus stated in 71 Corpus Jur. 83, § 42: “Where one has expressly contracted to pay, no obligation of another will be implied to pay for the services or materials furnished under the express contract.” See also Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165. Neither will it do, it is held, to assume that this Court’s former holding in Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, 229, that the evidence in that case support-éd the claim of the appellee there that “Mr. Gill was an alter ego of the Building Corporation, and that the jury was authorized in finding that transactions between him and the Building Corporation were bookkeeping transactions, and that the jury was authorized by the evidence in answering special issue No. 1 in the affirmative.” This, for the reason that no such issue of fact was either plead or proved in this .present cause; wherefore, since the appellant, Ned Gill, individually in this present litigation, both in the trial court and in this Court on appeal, denies that the Ned Gill Building Corporation was his alter ego, the appellees here raise no question of fact to the contrary. There plainly is, therefore, no such issue of law before this Court.
Wherefore, the joint and several judgment so rendered against the appellants cannot stand. Since I am somewhat in doubt as to whether or not there should be a rendition, or a remand, I think this Court’s order should be one returning the whole cause to the court below.
On Filing of Remittitur
CODY, Justice.Appellees have duly filed their remittitur herein in the sum of $925.37 as required by this Court’s order entered May 27, 1954. Accordingly judgment will be entered reversing and rendering the judgment of the court below insofar as it allowed any recovery of and from the appellant Ned Gill Building Corporation, and as to appellant Ned Gill personally the judgment of the trial court will be reformed and affirmed so as to allow appellees a recovery of and from the said appellant personally the sum of $32,666, with interest thereon at the legal rate from the date of the trial court judgment. Costs of appeal will be adjudged against the appellees, and the trial court costs will be adjudged against the appellant Gill personally.
Reversed and rendered in part and in part reformed and affirmed, GRAVES, J., dissenting.