Dissenting Opinion
COLEMAN, Justice.I agree with the opinion of Chief Justice Bell with the exceptions herein noted.
Here issues were submitted on theories of full performance, substantial performance, and quantum meruit. The jury found substantial performance and that full performance was prevented by conduct of the owner, and further answered issues on which the court entered a judgment based on quantum meruit.
In Teague v. Edwards, 159 Tex. 94, 315 S.W.2d 950 (1958), the Supreme Court held that if there be a valid express contract, a recovery cannot be sustained in quantum meruit.
In Dallas Electric Supply Co. v. Branum (Tex.Civ.App.—Galveston 1954, ref., n. r. e.), the opinion reflects that by one special issue the jury found an express contract to pay a certain amount of money as attorney’s fees. By its answer to another special issue the jury found that a reasonable attorney’s fee for the services rendered was a greater sum. The trial court entered a judgment for the larger amount. The Court of Civil Appeals stated that a party cannot recover in quantum meruit *832where he has an express contract and required a remittitur as a condition of affirmance.
In Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427 (1945), the Supreme Court said:
“It follows that there is no basis for the application of the doctrine of quantum meruit in this case. A recovery on that ground would be a recovery of what the agent’s services were worth. The contract expressly covered that subject * * *. The amount of compensation was not left to implications, but was definitely fixed. For the court to determine what the agent’s services were worth would be for it to make a contract for the parties. That, of course, it cannot do.”
In Deal v. Craven, 277 S.W. 1046 (Tex.Com.App.1925), the opinion reflects that in answer to special issues the jury found that the plaintiff (subcontractor) constructed a road in substantial compliance with plans and specifications and that the work was accepted as complete by an engineer (designated in the contract as one whose decisions on all questions arising out of performance of the work would be final). The jury further found the defendant (general contractor) expended $1,160.63 on the work in order to meet the requirements of his contract with the county. The trial court deducted this amount, together with the payments previously made, from the total contract price as found by the jury and granted judgment for the plaintiff in the resulting amount. This judgment was affirmed by the Court of Civil Appeals, but the Supreme Court reversed and rendered judgment for the plaintiff for the contract price less sums paid. The Court said:
The plaintiff pleaded a strict compliance with the terms of his contract, and likewise, in the alternative, he pleaded a substantial compliance, but in view of the verdict upon issue No. 2, no judgment other than one for the plaintiff could be entered. It has long been settled in this state that the judgment must follow the verdict, and that the courts are without power to enter a judgment notwithstanding a verdict upon a material issue. This is the correct practice, even to the extent of those cases where the verdict is contrary to the undisputed evidence. In such a case the court has the alternative of setting aside the verdict, but until such action is taken, no judgment can be entered contrary thereto. Ablowich v. [Greenville Nat.] Bank, 95 Tex. 429, 67 S.W. 79, 881. The parties to this suit, by the contract duly pleaded and proved, agreed specifically that the decision of the county engineer of Fort Bend county on all questions arising out of the performance of the work contemplated should be binding upon them. In response to special issue No. 2 the jury found that the engineer had fully accepted as complete the construction work which the plaintiff had contracted to do, and in response to issue No. 3 they found the total amount due. In view of these findings, the other findings become immaterial. Those referred to are absolutely conclusive of the case, and upon them the plaintiff was entitled to judgment for the amount found in response to issue No. 3, less, of course, the admitted credit pleaded by plaintiff.”
In Cox v. KTM Drilling, Inc., 395 S.W.2d 851 (Tex.Civ.App.—Amarillo 1965, ref., n. r. e.), the court affirmed the judgment of the trial court granting full contract price to the contractor and against the owner where the contract had been substantially performed and an attempted complete performance was prevented when the owner refused to permit the contractor to use a pump which the owner was obligated by the contract to furnish. The court held:
“It is elementary that where a contract has been substantially performed and an attempt to complete performance is refused the refusal excuses any further at*833tempts on the part of the party offering performance.”
In this case issues answered by the jury establish substantial performance on the part of the contractor and that full performance was excused by reason of the owner’s conduct. The jury found the full contract price. The balance due can be calculated from undisputed facts. While there was a claim for extra work and evidence was introduced, there were no issues answered on which a judgment for the extra work can be based.
The judgment of the Trial Court based on the quantum meruit issues exceeds the balance due on the contract price. It is my opinion that judgment should have been entered for the contract price, less the sums already paid, resulting in a judgment for the appellee in the sum of $16,079.09, and that, therefore, the judgment of the Trial Court should be reversed and judgment rendered for such amount.
I respectfully dissent.