dissenting.
I respectfully dissent. Eura McQueen plead both an express agreement and quantum meruit as alternative theories of recovery. The jury found the existence of an express agreement.1 They also found a *388breach. They failed to find any damages.2 While the jury did find the necessary elements for a recovery based upon quantum meruit, the express agreement finding precludes a judgment based upon quantum meruit.
The majority states: "... Part of the work done was pursuant to an oral agreement. ... A large, subsequently ordered part of the dozer work was based in quantum meruit....” However, jury question one was a question about bulldozer work in general, therefore any bulldozer work or dozer work performed by Eura McQueen for Onoray Davis would fall under the agreement. The majority cites Truly v. Austin, 744 S.W.2d 934 (Tex.1988) but only for comparison. I believe it is controlling. The original Austin v. Truly, 721 S.W.2d 913 (Tex.App.—Beaumont 1986) was written by Justice Brookshire. That opinion had a concurrence from Chief Justice Dies and a concurrence and dissent from this writer. Justice Brookshire held that quantum meruit was precluded because there existed a contract that covered the subject matter of the claim, relying upon Woodard, v. Southwest States, Inc., 384 S.W.2d 674 (Tex.1964). 721 S.W.2d at 918. Justice Spears then wrote for the supreme court and affirmed Justice Brookshire. The supreme court in Vortt Exploration v. Chevron U.S.A., 787 S.W.2d 942, 944 (Tex.1990) reaffirmed the rule of Truly v. Austin. Numerous courts of appeals have followed the rule. See Bado Equipment Co., Inc. v. Bethlehem Steel Corp., 814 S.W.2d 464 (Tex.App.—Houston [14th Dist.] 1991, no writ); W & W Oil Co. v. Capps, 784 S.W.2d 536 (Tex.App.—Tyler 1990, no writ); Noble Exploration, Inc. v. Nixon Drilling Co., 794 S.W.2d 589 (Tex.App.—Austin 1990, no writ); Peko Oil USA v. Evans, 800 S.W.2d 572 (Tex.App.—Dallas 1990, writ denied); Lone Star Steel Co. v. Scott, 759 S.W.2d 144 (Tex.App.—Texarkana 1988, writ denied); M.J. Sheridan & Son Co., Inc. v. Seminole Pipeline Co., 731 S.W.2d 620 (Tex.App.—Houston [1st Dist.] 1987, no writ); Morales v. Dalworth Oil Co., 698 S.W.2d 772 (Tex.App.—Fort Worth 1985, writ ref'd n.r.e.).
Eura McQueen successfully carried the burden of persuasion that an agreement existed, but failed to carry that same burden on the issue of damages.3 Thus, the trial court was required to enter a take-nothing judgment. I would reverse and render a take-nothing judgment in favor of appellant.4
. The majority acknowledges this through the statement "The jury found that McQueen and Davis agreed that McQueen would perform bulldozer service for Davis and would be paid §55 per hour for the work performed by the large bulldozer and $40 per hour for the work performed by the small bulldozer.”
. The majority, unilaterally and without any attack by appellee, finds "[t]his finding was unresponsive and defective.”
. McQueen filed no motion for new trial, motion for judgment n.o.v. or cross-point with this court. Consequently that jury answer is unchallenged.
.This is- admittedly a harsh result since the practical effect is unjust enrichment to Mr. Davis. This was not the first case where failure to properly preserve error or take required appellate procedural steps has produced such a result.