dissenting.
I dissent. I do not agree that Stamp-Ad had the burden to prove the amount of costs saved by Barton Raben as a result of Barton Raben’s non-performance under its one-year employment guaranty. Further, I do not agree that Stamp-Ad had the burden to object, or to request a different jury question, regarding Barton Raben’s damage issue. In my opinion, Barton Raben had the burden to plead, the burden of proof, and the burden to request the proper jury question on the issue of its damages.
Stamp-Ad specifically raised the issue regarding the appropriate measure of damages recoverable by Barton Raben when it filed its answer asserting that (1) Barton Raben had not performed under its replacement guarantee, (2) Barton Raben had sought the additional fee before the one-year employment date of Don Davidson, contrary to the agreement of the parties, and (3) Barton Raben was seeking more than it was entitled to under the agreement.
In its first point of error, Stamp-Ad asserts there is legally insufficient evidence to support the jury’s finding that Barton Raben suffered $39,000 in damages for Stamp-Ad’s breach of the executive search contract covering the Vice President of Product Development position. Stamp-Ad asserts that the appropriate measure of damages is a calculation of “lost profits net of savings”, and Barton Raben failed to prove its damages. Stamp-Ad argues that Barton Raben is not entitled to recover the gross amount of $39,-000 because such a recovery would place Barton Raben in a better financial position than it would have occupied had both parties fully performed the contract. I agree.
The purpose of damages is to place the injured party in as good a position as it would enjoy if the other party had fully performed under the contract. Lakewood Pipe v. Conveying Techniques, 814 S.W.2d 553, 555 (Tex.App.—Houston [1st Dist.] 1991, no writ); Stewart & Stevenson Serv., Inc. v. Enserve, Inc., 719 S.W.2d 337, 343, (Tex. App.— Houston [14th Dist.] 1986, writ ref'd n.r.e.) The measure of damages for breach of a service contract is the profit that the service provider would have earned had he been permitted to complete the contract. Gunter Hotel, Inc. v. Buck, 775 S.W.2d 689, 697 (Tex.App.—San Antonio 1989, writ denied); Harlingen Indep. Sch. Dist. v. C.H. Page & Bros., 48 S.W.2d 983, 985 (Tex. Comm’n App.1932, holding approved). The appropriate measure of damages is the difference between the contract price of the services and the expenses that would have been incurred in rendering the services. Id.
In Harlingen Indep. Sch. Dist., the court held that the appropriate measure of damages for a breach of contract for architects’ services is the profit the architects would have made if allowed to complete the contract. 48 S.W.2d at 985. The lost profits method of computing damages for breach of contract announced in Harlingen Indep. Sch. Dist. has been followed in numerous subsequent decisions. See Wynnewood Dev. Co. v. Belmares, 295 S.W.2d 441 (Tex.App.—East-land 1956, no writ) (the proper measure of damages for the breach of contract is the net profits appellee would have made had the contract been carried out); Comeaux v. Mann, 244 S.W.2d 274, 276 (Tex.Civ.App.—Austin 1951, writ dism’d) (contractor was entitled to recover the difference between the contract price and the expenses he would have incurred in completing the contract, less the amounts he had been paid).
Here, Barton Raben seeks breach of contract damages for Stamp-Ad’s failure to pay the remaining amount owed on the Vice President of Product Development executive search contract. The agreed professional fee, $36,000, that was paid by Stamp-Ad was the search fee. The additional $39,000 that *940is in dispute became due only if Barton Ra-ben placed an employee with Stamp-Ad. Once an individual was placed with Stamp-Ad, Barton Raben had an additional obligation under the agreement to replace the individual if he left within one year of his own accord or because of his own fault.
Barton Raben recommended Don Davidson to Stamp-Ad as a candidate for Vice President of Product Development, and Stamp-Ad hired Davidson at a $250,000 yearly salary. At that point, Stamp-Ad became obligated to make up the $39,000 difference between 30% of Davidson’s $250,000 first-year salary and the $36,000 professional fee already paid. However, at that point Barton Raben also became obligated to replace Davidson if he left within one year of his own accord or due to his own fault.
The jury was asked the following questions:
Question No. 1
Did Stamp-Ad fail to comply with the agreement regarding the search for a Vice-President/Product Development?
ANSWER: Fes
Question No. 2
What additional sum of money, if any, paid now in cash, would fairly and reasonably compensate Barton Raben for Stamp-Ad’s failure to comply with the agreement regarding the search for a Vice-President/Product Development? ⅜ ⅜ ⅜ ⅜ ⅜ ⅜:
ANSWER: $39,000.00
In a reviewing a “no evidence” point, the reviewing court considers only the evidence and inferences that tend to support the finding, and disregards all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of America, 774 S.W.2d 666, 668 (Tex.1989). If the evidence conclusively establishes a proposition contrary to the jury finding, a “matter of law” point of error will be sustained. Meyerland Community Improvement Ass’n v. Temple 700 S.W.2d 263, 267 (Tex.App.— Houston [1st Dist.] 1985, writ refd n.r.e.).
The evidence supports the conclusion that, once Davidson was hired, Stamp-Ad owed Barton Raben an additional $39,000, and Stamp-Ad failed to pay that amount. However, as a matter of law, the loss or damage Barton Raben actually sustained from the Stamp-Ad’s breach was $39,000 less the expense Barton Raben would have incurred in searching for a replacement for Davidson. The evidence is uncontroverted that much time and effort is required to be expended in order to locate a qualified candidate for an executive position such as Vice President of Product Development. However, there is no evidence of the expense value to be attributed to such time and effort.
The plaintiff has the burden of proving with some degree of certainty a factual basis to support the amount of damages awarded. Lakewood Pipe, 814 S.W.2d at 556; McCarley v. Hopkins, 687 S.W.2d 510, 513 (Tex. App.—Houston [1st Dist.] 1985, no writ); Mangham v. Hall, 564 S.W.2d 465, 469 (Tex. Civ.App.—Corpus Christi 1978, writ refd n.r.e.). Barton Raben had the burden to prove each element of recoverable damages. See Lakewood Pipe, 814 S.W.2d at 556; Superior Trucks, Inc. v. Allen, 664 S.W.2d 136, 145 (Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.).
Stamp-Ad filed a motion for judgment notwithstanding the verdict requesting that “the Court disregard the jury’s answer to Question No. 2, because Barton Raben as a matter of law failed to establish a critical element of the proper measure of its damages, and enter judgment in Stamp-Ad’s favor based upon the jury’s other answers.”
Because there is no evidence in the record from which the jury could have determined the expenses Barton Raben saved by not completing performance of the second search contract, the jury could not calculate the net *941profit lost by Barton Raben on the search contract. Accordingly, Stamp-Ad was entitled to the requested judgment notwithstanding the verdict.
I would sustain point of error one.
In its second point of error, Stamp-Ad asserts the trial court erred in awarding Barton Raben attorney’s fees because Barton Raben was not entitled to actual damages. I agree.
Attorney’s fees are recoverable only if the claimant finally obtains judgment. Rocha v. Merritt, 734 S.W.2d 147, 148 (Tex.App.—Houston [1st Dist.] 1987, no writ); Siegler v. Williams, 658 S.W.2d 236, 240 (Tex.App.—Houston [1st Dist.] 1983, no writ). As discussed above, Barton Raben did not prove all of the elements of its actual damages and is not entitled to a damage judgment. Therefore, Barton Raben cannot recover attorney’s fees.
I would sustain point of error two.
I agree with the majority’s disposition of point of error three.
I would reverse the portion of the judgment in favor of Barton Raben and render judgment that Barton Raben take nothing against Stamp-Ad. In all other respects, I agree with the majority.