On Motion for Rehearing.
Appellants in their motion for rehearing strenuously urge that the trial court was in error in permitting appellee, after all parties had closed their testimony, to file a trial amendment, admitting it owed appellants §28,960.89 under the original contract which it made with appellants, and in thereafter instructing the jury to return a verdict for appellants and entering judgment thereon for appellants for said amount. Appellants correctly state that their suit was not on the original contract made between them and appellee, but was based alone on quantum meruit -for the work done and the material and labor furnished by them in the erection of the Terminal building. Appellants did not offer any evidence with reference to the amount that was or would be due them under the original contract, if they had not abandoned same. Appellees in the trial court based their defense alone upon the right of appellants to abandon the contract and recover on quantum meruit. There is evidence in the record which, if uncontested, was sufficient to authorize the trial court to determine the amount due appellants under the original contract Said issue was not, however, fully developed, evidently on the theory that appellants were not seeking a recovery under the contract. It appears from the record that the trial court, after the testimony had closed, suggested that lie thought on equitable grounds appellants should recover at least the amount appellee admitted owing them under the terms of the contract, and the trial court made the suggestion that appellee file a trial amendment tendering said amount to appellants, in order that he might instruct the jury to return a verdict for appellants for said amount, the record showing that the trial court in connection therewith stated that he was of the opinion, and so held, that appellants were not entitled to recover under the cause of action as alleged by them, seeking a recovery on a quantum meruit basis. While the trial court was apparently trying to help appellants, he had no right as a matter of law to permit appellee to file said trial amendment and then require appellants to accept said amount in satisfaction of the amount that might be due them under said contract, over the timely objection urged by appellants that they were not seeking a recovery on the contract and had offered no evidence in reference thereto, and did not desire to be bound by any judgment rendered by the trial court on a basis of a recovery on the original contract. The defendant cannot under our procedure allege a cause of action for the plaintiff and require plaintiff to recover thereon. It is the fundamental law of this land that plaintiff must recover, if at all, upon the cause of action as alleged by him. Community of Priests of St. Basil v. Byrne (Tex. Civ. App.) 236 S. W. 1016; Saner-Whiteman Lumber Co. v. T. & N. O. Ry. Co. (Tex. Com. App.) 288 S. W. 127.
We sustain appellants’ assignments of error and propositions thereunder relating to the action of the trial court in permitting ap-pellee to file its trial amendment admitting it owed appellants under the original contract the sum of $28,960.89, and agreeing that the court should enter judgment against it for said amount, and to the action of the trial court in entering judgment thereon.
This does not, however, necessitate a reversal of the judgment of the trial court. The judgment as entered by the trial court specifically adjudges that appellants are not entitled to recover on their cause of action based on their pleadings, and definitely adjudicated that appellants should not recover against appellee thereon. For the reasons stated in our original opinion, we think the trial court was correct in said holding and judgment. The judgment of the trial court will be re-■forméd to the extent that its judgment of $28,960.89 for appellants will be eliminated therefrom, and judgment will be entered' that appellants take nothing, and, as so reformed, the judgment of the trial court will’ be affirmed. . .
*790Appellants in their motion for rehearing ask for additional findings of' fact, and challenge the findings of this court in certain respects. In response thereto we make the following additional findings:
The contract made between the parties provided different methods for ascertaining the amount due appellants under the original contract and that due for extra work. For work done under the original contract, article 4 thereof provides:
“On the 1st and 15th of each month, ninety per cent, of the value proportionate to the amount of the contract, of labor and material incorporated in the work, and of material and work suitably stored at the site thereof and at places to be agreed on adjacent or close thereto between the parties hereto, up to the preceding 1st and 15th days of the month, respectively, as estimated by the architect and on certificates furnished by the architect to the owner not less than eight days before the due date of payment, less the aggregate of previous payments, and upon substantial completion of the entire work a sum sufficient to increase the total payments to ninety per cent, of the contract sum.”
Article 6 of the general conditions of the contract provides for making changes and for doing extra work, and provides:
“The value of any such' extra work or changes shall be determined in one or more of the following ways: (a) By estimate and acceptance in a lump sum; (b) by unit prices named in the contract or subsequently agreed upon; (c) by cost and percentage or by cost and a fixed fee; (d) if none of the above methods is agreed upon, the contractor, provided he receives an order as above, shall proceed’ with the work, no appeal to arbitration being allowed from such order to proceed. In cases (c) and (d) the contractor shall keep and present in such form as the architect may direct,, a correct amount of the net cost of labor and the materials, together with vouchers. In any case, the architect shall certify to the amount due to the contractor pending final determination of value. Payments on account of changes shall be made on the architect’s certificate.”
It was admitted that the value of the extra work was not fixed under either subdivisions (a) or (b) as provided in article 6 above.
E. F. Manett, one of appellants, testified that estimate No. 28 embraced extra work done on the building. He did not, however, testify it was all for eytra work. He further testified:
“Somewhere down the line from the time I first began to render those invoices to the present time, I have seen those invoices that I submitted to the architect in connection with my estimate, and I don’t think those invoices anywhere show what that material cost us. It don’t show the net cost to us. So far as our firm is concerned, I don’t know of any information in the form of paid bills showing the cost of material that was ever presented to Thornhill (the assistant architect). |⅜ * * In connection with the check that I made with Mr. Thornhill of our invoices, I never carried him any payrolls to show him what we were paying the men.”
Appellant Manett further testified that the invoices they furnished the architect and Terminal Building Corporation for the material used and the extra labor did not show what said material cost them, but showed what appellants were charging the Terminal Building Corporation therefor. He further testified:
“While Mr. Buckner and I were talking with Thornhill we put him on notice before we ever started checking, that we would not stand for any cut prices. In other words, before we started any check with Thornhill we put him on notice that we would not stand for any cut in our unit prices, and I think Mr. Seastrunk later voiced that same sentiment, which made it unanimous. ⅜ * * In connection with the check that. I made with Mr. Thornhill of our invoices, I never carried him any payrolls to show what we were paying the men.”
Appellant Mr. Seastrunk testified that the invoices which appellants prepared and furnished the architect and the Terminal Building Corporation showed that they were charging the Terminal Building Corporation as high as 300 per cent, for some of the material furnished, over and above what it actually cost them. Under his testimony, a great deal of the material was charged to the Terminal Building Corporation at 60 to 300 per cent, more than the actual net cost to them. He further testified:
“So far as receipted bills are concerned, the bills we furnished finally showing the costs on the materials were never marked ‘Receipted’ until just about eight days before we quit the job. * * * When I say that I furnished invoices showing the net cost to the Terminal Building Corporation, I mean I just furnished invoices showing what we were going to charge them. At that time (when estimate No. 28 was submitted) we did not furnish invoices or give them any information what the materials shown on the invoices cost us.”
“In the rechecking that was done it was also shown that we had billed the Terminal Building Corporation for a total of $35,653.43 and it was determined from the joint check that that labor cost us $18,826.16. In other-words, the total of labor billings was approximately 'ninety per cent, above cost.”
Appellants’ motion for rehearing is granted in part. The judgment of the trial court on rehearing is reformed, and, as reformed, is affirmed. All costs of appeal are taxed against appellee.