On Motion for Rehearing by Appellee.
Appellee insists on motion for rehearing that, if we adhere to our opinion that the judgment should be reversed, then the cause should be remanded rather than rendered for appellant.
First, it is contended that “it is not evident from the record that the case was fully developed” on this trial. This contention seems to be particularly urged with respect to our determining as a matter of law that appellee had not substantially complied with his contract by giving to appellant the name of one who purchased 1,450 acres and a one-sixteenth .of the mineral rights in the remaining 600 acres of the Ohenango planta'tion of 2,050 acres. Appellee alleged that he contracted to furnish the name of one who would purchase the entire Ohenango plantation, and that he furnished the name of one who purchased only 1,450 acres of the plantation. Appellant especially excepted to this pleading as showing that appellee had not complied with his contract of employment, which was overruled. Appellee testified that he was to furnish the name of one who would purchase the entire plantation, and that he furnished the name of one who purchased only 1,450 or the 2,050 acres. Appellant moved for an instructed verdict, because this undisputed evidence showed appellee had not complied with his contract as alleged. The motion was overruled. We adhere to our former conclusion that appellee’s testimony as a matter of law shows that he had not substantially complied with his contract of employment. The issue of substantial compliance with the contract was not submitted to the jury. If there had been any evidence on the issue, it would be presumed that the trial court found in support of its judgment that the contract had been substantially performed. There is no evidence in the record which would sustain either a verdict of a jury or a- finding of a trial court that the contract sued upon had been substantially performed; and we take the view that under the undisputed evidence neither the court nor the jury could have legally found that the sale of 1,450 acres of the 2,050 acres of land was a substantial compliance with appellee’s alleged contract to sell the entire 2,050 acres. In other words, there was no fact issue for the court or jury, and the evidence in this regard was fully developed. We therefore, in our discretion as a Court of Civil Appeals, reversed the judgment and rendered judgment for appellant ; and in this we are supported by the following authorities cited by appellee in his .motion for a rehearing: H. & T. C. R. R. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707; 3 Tex. Jur. § 854; Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S. W. 913. In-this case there was no adverse ruling to appellee which in any manner prevented him from developing his case. He testified that the only transaction he had with appellant was to give it the name of a prospective purchaser, and that he never thereafter knew negotiations were being had or that a part of the land had been some eleven months later sold to the purchaser, until after sale or trade had been fully consummated. The motion for rehearing does not suggest any possible evidence that could be introduced on a new trial, but merely makes the general conclusion that it is not “evident from the record that the case was fully developed.”
*148Second, it is contended that “if, as this court held, recovery could have been had ■only upon the quantum meruit, the court * * ⅜ should have remanded the cause for a new trial, since where the cause is tried on the wrong theory, and it does not appear that it was fully developed in the trial court, it is the duty of the court, upon reversing the judgment, to remand the case for a new trial.” Such was our holding, but we further held that appellee did not plead for recovery on the quantum meruit. However, we have reached the conclusion that we should not render judgment for appellant, and thereby foreclose appellee on his right of recovery on the quantum meruit, under the rule stated in Camden Fire Ins. Co. v. Yarbrough (Tex. Com. App.) 215 S. W. 844, as follows: “Where, upon reversal of a case, it seems aprobable that the ends of justice may be better subserved by remanding than by rendering judgment, the former course should be ■pursued, notwithstanding it is apparent that a full consideration of the case necessitates •that the pleadings be amended. Buzard v. Bank, 67 Tex. 83, 2 S. W. 59, 60 Am. Rep. 7; Combes et al. v. Stringer, 106 Tex. 427, 167 :S. W. 217; H. & T. C. Ry. Co. v. State, 24 Tex. Civ. App. 117, 56 S. W. 228; K. C., M. & O. Ry. Co. v. Pope [Tex. Civ. App.] 152 S. W. 185; Id. [Tex. Civ. App.] 153 S. W. 163 ; Ft. Worth & D. C. Ry. Co. v. Copeland [Tex. Civ. App.] 164 S. W. 857.”
The rule is again stated by the Commis:sion of Appeals in Associated Oil Company v. Hart, 277 S. W. 1043, 1045, as follows: “It is the rule, where a judgment has been reversed, to remand to the trial court rather than to render, where the ends of justice will be better : subserved thereby. Such remanding has often been ordered to supply additional testimony, ito amend the pleadings, and even to show jurisdiction.” See, also, 3 Tex. Jur. 1231, 1233, § 860, and cases there cited.
We set aside our former judgment re- • ver sing and rendering judgment for appellant, and reverse the judgment and remand ;the cause in accordance with this opinion.
Overruled in part and in part granted.