concurring and dissenting.
I reluctantly concur in the remand. I vigorously dissent to the majority’s rationale and limiting instructions in their remand.
I concur in the remand because the trial court erred in entering judgment for the amount found by the jury to be the reasonable value of the services rendered. Appel-lee attempted to prove the fair and reasonable value of the services rendered by two methods summarized thusly:
Q In effect, what we’ve tried to do here is to give the jury two different methods of placing evaluation on the services Mr. Truly rendered on that project; is it not?
A Yes, sir.
Q On the one hand, the testimony regarding the lease commission and the value of his services, taking that analysis of it, would he have arrived at this two hundred fifteen thousand four hundred eighty dollar figure?
A Right.
Q On the other hand, if we look at the value of what his interest in the participation and the completion of the project is, we come up with a three hundred one thousand nine hundred twenty dollar figure?
A Yes, sir.
Both of these methods contain at least one common element, i.e., a calculation based upon the full 40% interest in the development as per the proposed joint venture. It is undisputed that appellee did not take part in the development of the shopping center through completion. In fact, no construction had begun when the parties terminated the relationship. Therefore, there can be no recovery based upon the alleged contract although the contractual consideration may be some evidence of the value of the services rendered. Montclair Corp. v. Earl N. Lightfoot Paving Co., 417 S.W.2d 820 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n.r.e.). Consequently, the jury’s answer to the *928damage issue contains at least one erroneous element of damage.
I dissent to the majority’s holding that quantum meruit does not lie in this case. The majority relies upon Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex.1964) which they describe as a landmark, watershed case. Woodard, stands for the proposition that there can be no implied contract if valid express contract covering the subject matter exists. In Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80, 86 (Tex.1976), however, the Supreme Court later clarified that the contract must actually cover the same subject matter as the claim to invoke Woodard’s bar:
[T]he existence of an express contract does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are not covered by the contract.
Appellee’s claim does not fall within the contract in this case.
The instrument executed by the parties titled, “Agreement to Enter Into a Joint Venture Agreement”, was an agreement to establish, at some time in the future, the relationship of joint venturers. It recited that, “the Parties desire to reach agreement on several of the terms and conditions governing their Joint Venture”, and further stated, “The Parties will enter into a Joint Venture....”
This instrument did not contractually determine the value of Truly’s services in securing leases for the shopping center. It was nothing more than an agreement to enter into a future agreement. Further, since Truly was to exchange his services for something other than a determinable amount of money (the 40% interest in the property), he could have received the reasonable value of his services even if he had fully performed. Coon v. Schoeneman, 476 S.W.2d 439, 443 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.). I would hold as a matter of law that the instrument did not cover the subject matter of the claim and, therefore, that quantum meruit does lie.
I would also hold there is no “cap” under Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031 (1937). The Colbert “cap” would apply if the parties had intended for the $24,000 to be the appellee’s only remuneration for his development services. They did not. They intended for him to receive both $24,000 for expenses and a 40% interest in the development. Thus, the $24,000 is no limitation on the value of his services.
I would reverse and remand for a new trial on all issues. TEX.R.APP.P. 81(b). Since this is not the result reached by the other writers, I respectfully dissent.