*1 case, could application cency In with a child not be accom- this flawed by: paragraph immediately by touching followed plished breasts of the com- argument rejected have plainant. We you beyond do reasonable If not so find doubt, point error four. you if have a doubt above number reasonable thereof, acquit you will the defendant as sixth error point The is overruled. charged Indict in the first of the Count judgment The is affirmed. ment, and consider the second count. Now, if you find from the evidence be
yond a doubt reasonable that on or about day September,
the 1st Brazos Texas,
County, defendant, JERRY
TURNER, did then and intentional there
ly knowingly, arouse or intent to
gratify the sexual desire of said defend
ant, engage in sexual contact touch James D. AUSTIN and Gearld N.C., ing younger the breasts of a child Clark, Appellants, years spouse than 17 and not the defendant, you then will find the defend charged in guilty ant as the second count TRULY, Appellee. Jack D. of the Indictment. you beyond Unless so find a reasonable No. 09-85-145 CV. doubt on either of the counts of the two Texas, Appeals of Court of indictment, you or if reasonable Beaumont. thereof, you doubt the defend- acquit will ant. Nov. 1986. counsel, Appellant’s during argu- final Rehearing Denied Dec. 1986. ment, supplied missing phrase, when he “if you beyond stated believe a reason- ... night gown doubt he raised her
able
put panties hand inside her and touched genitals
her on and touched her on the
breasts, guilty.” him find light charge jury of the entire and the counsel,
argument of we find that there Almanza, error. harmful jury’s responsibilities at reading charge clear from a
a whole. point fifth error is overruled.
Appellant’s point sixth of error contends overruling ap- court erred in trial
pellant’s objection to the submission court’s charge by counts with alternative
general guilty. Appellant con- verdict of impossible if
tends that it is to determine touching jury “acquitted” appellant of complainant’s genitals, convicted but breasts, touching or vice-versa.
him gen-
Appellant concedes that such failure harmless, argues
erally but it was inde- case as the
harmful offense *2 Golden, Gray, Jasper,
Joe Bob Golden & appellants. for Seale, Stover, Coffield, Bisbey, Blair A. Bisbey, appellee. Gatlin Jasper, & OPINION BROOKSHIRE, Justice. appeal
This results from an action brought by Appellee, Truly, on claims on breach of contract plot developed theory Safeway. meruit. The the sale alternate against pleaded counterclaims Appellants along preliminary plans. Ne- with certain Appellee alleging the breach of a con- gotiations prospective tran- tenants duty. The trial tract as well violation actors, key spired. Mr. Ken- One jury. Special Issues were drick, suddenly. Then McFaddin-Ken- died 10 in number. The verdict was rendered unwilling or drick was unable to continue Appellants against the for the amount of development project Kendrick’s while *3 $215,480.00 largely on me- Later, being probated. estate Austin was damages. attorney’s ruit An additional fee regained by title to the tract foreclosure. Appellee. awarded to the was Truly through employee of Austin met Safeway. Clark later became a third inves- points Appellants argue The of error. tor. perceive points of We that a number these may be grouped.
of error “Agreement to En- Because we deem Agreement” of litigation ter Into A Joint Venture juried This arose out of a writ- paramount importance, we in full: “Agreement to En- document set it out ten entitled a ter Into Joint Agreement’. Venture joint agreement signed The venture and A “AGREEMENT TO ENTER INTO by approved each of the three was JOINT VENTURE AGREEMENT 22,1982. The dated business rela- Agreement is into on the “This entered venture, tionship, the joint between Austin, undersigned date Jim Gearld Appellants, and the existed for no Truly. Clark and Jack than 8 The more months. Agree- “WHEREAS the this Parties to developed to have the “Crossroads own, acquire, ment desire to hold for Shopping Jasper. Center” in Austin had on, investment, improvements construct had, the real owned estate involved and subdivide, maintain, [sic], oper- develope years, of to develop a number endeavored ate, acquisition, operation, de- finance the project. Appellants argue
this of, velopment, improvement sell or and phase the shopping development, of center property lease certain real situated lawsuit, giving to rise had duration Texas, County, Jim Jasper owned months, partial beginning about No- Austin, Highway on situated U.S. vember, June, 1981 through Appel- 1982. High- south intersection of its with U.S. basically lants further contend that this lying real way contiguous and to duration actually months of time was inter- being developed Safeway property as a posed beginning in between the de- Supermarket on the southwest corner velopment by and firm James Austin Highway of U.S. 190 and comple- and the intersection called McFaddin-Kendrick 96; and Highway U.S. shopping tion of the center a new venture that was that it “WHEREAS Parties believe departure. formed after the accomplish is their best interest to purpose through formation above-stated purchased by A tract land was Austin Venture; of, in, participation a Joint This in 1975. tract was the site of the shopping proposed property center. “WHEREAS, to the Parties desire eventually paid sometime in 1981. out reach the terms develop had to several of attempted Austin governing their Joint Ven- shopping center before this one. conditions ture; Gilliam, early Mr. part In the “IT THEREFORE MUTUALLY IS McFaddin-Kendrick, employed by who was AGREED AS FOLLOWS: shopping began to work on center. Joint will enter into a Safeway to the “The Parties part of the tract was sold Agreement accomplish Grocery agreed Venture firm. McFaddin-Kendrick purpose develop shopping stated above. a small center after ownership par- “SIGNED, “The interests of the as to APPROVED con- f.l, ties, tent, day including participate their this 22 of Jan thereof, unless stat- otherwise “/S/ Jim Austin herein, ed shall be as follows: Tru- Jack JIM AUSTIN 40%; Austin, 30%; ly, Clark, Jim Gearld “/S/ Gearld Clark 30%. GEARLD CLARK “/S/ J.D. Austin sell property,
“Jim shall real JACK TRULY” $547,000.00 valued at to the Joint Ven- ture. important to note that the things, desired to do Austin several
“Jim and Gearld Clark shall including acquiring, holding for invest- arrange financing the construction ment, developing, maintaining, operating, development contemplated by acquisition financing certain real Venture, $2,500,- Joint in a minimum of develop property center. Of at floating 000.00 an interest rate of *4 paramount importance is the sentence prime. Parties will enter a into Joint Ven- “[t]he “The Joint Venture shall have an inter- Agreement accomplish to purpose ture the property beginning est in real the Janu- Truly to stated above.” Jack was receive ary of project, the interest the as well as 40% Truly supervise “Jack shall the con- right participate profits the to in the there- development struction and and re- shall indeed, and, the of at same the 40% Joint ceive from the Joint Venture of the sum Venture “shall in the interest real $2,000.00 per month, beginning January property beginning January 1982. Jack 1, 1982, continuing through Decem- Truly supervise shall the construction and 31, 1983, $24,- ber for total draw of development and shall receive from the 000.00. $2,000.00 per Joint Venture the' sum of agree “The Parties that after month, 1,1982, beginning January and con- sold, the may Joint Venture be or tinuing through December for a may the Joint Venture sell all of its as- $24,000.00.” draw of total selling price sets. In no the event shall dispute liability over arose the $3,000,000.00. be less than If one or proposed development loan. It clear that accept two of the refuse to the breach of the written buy offer bona fide to the assets the agreement Truly occurred when Mr. re- Joint Venture at or above the stated sell- closing to come the the fused to at bank ing price, remaining party the or Beaumont, arrangements where had been complete shall able to the be sale financing development made for the of the agent agents authorized of the Joint center; shopping and construction of the pro- proportion Venture. The of sale though agreement January 22, even the non-accepting party ceeds due to each provided specifically Clark for promptly shall to him the remitted arrange financing Austin to the for —not accepting party parties. person- project to fund the out of their own “During years 1982 the and 1983 Jim Thereafter, Appellee was al resources. the Clark receive Austin Gearld shall shopping further associated with the depreciation tax benefits Appellee part- 80% Although center. was a Truly Venture. shall re- Joint Jack larg- in the and had the ner Joint Venture remaining deprecia- therein, ceive the of the ownership 20% proprietary est interest being (including percentage tion benefits term. tax for stated the same 40% participate The Venture shall use an acceler- Joint to venture), not be depreciation permits ated schedule which he decided that he would any part the neces- greatest depreciation during personally stat- liable for though the sary bank loan even ed term. Truly on agreement spective tenants. worked certain read that: “the Parties to early plot plan. Appel- The Agreement acqui- versions of desire ... finance the sition, development, im- lee said he had received commitment on operation, part McDonald’s but he certain described provement property of ... real part as a Jasper County....” The attor- situated in agreement project. locat- The record shows there had ney up the who drew ground construction on the employed by Truly. been actual ed in Dallas and was Appellee being the at the time the withdrew from attorney The was described as signed depart- after the lawyer Truly. Truly venture. business layout, first. ed from the venture that con- agreement for the Joint Venture completed development He Austin and The struction and then sent it to Clark. shopping place. attorney Capelle. in Dallas was Mr. Ben center took Capelle up upon drew the Attorney’s Letter Truly Capelle. told what negotiations after numerous be- followed A letter dated signatories. Truly tween the stated Office, stationery Capelle, Ben of “Law personal liability on the several Law”, Attorney addressed Austin at of his precipitated bank note dissolution Clark, Truly, states that copy with a he relationship with Clark and Austin. But Development, “Re: Jas- Shopping Center get percent “forty conceded that he was per, Texas:” the deal.” contended he was client, Truly, “My Mr. Jack has asked get putting deal of the whole without Agree- me to a Joint Venture prepare up any money whatsoever and without developing ment for center *5 did, signing any any Truly notes or liens. ... you Jasper, with in Texas I am later, agreement in concede that the there speci- within the unable to furnish this language specifying Truly was no that However, pre- I fied time frame. have personal liability. no He testi- would have pared enter into a contract a Joint fied: copy of Agreement, Venture which “Q agree- you show us in the Would enclosed, you agree will allow which says you ment there where that it your pro- for on terms and conditions liability? no personal Venture, obligated posed Joint and terms_” specify liability.” “A It doesn’t each on the stated other added) (Emphasis clearly The record demonstrates that Appellee, Truly, experienced Appellee’s quan- the the Inconsistent with claim, specific provision testi- developer of centers. He is the tum meruit by Capelle, one or time agreement fied that he owned two at the drafted whose in the constructing Appellee of an additional the “shall Truly, trial and was client was that develop- shopping center two. supervise the construction the receive Joint ment and shall from November, 1981, May in Beginning until $2,000.00 month, per sum Venture the of the Joint Venture contin- June of continuing beginning development plans, had ued the that 31, 1983 through December a total Truly begun by McFaddin-Kendrick. been added) $24,000.00.” (Emphasis draw of conduct- for construction and solicited bid negotiations proposed ed with ten- certain Proprietary Interest preparation of participated He ants. that, in mind in said must be borne ar- two-page financial statement and unambig- is a clear and agreement, there glar- ranged topography survey. It is for a provision reads: uous which ingly considered efforts clear that he these par- ownership “The interests the definitely part “development as ties, participate in including their pre- had project”. McFaddin-Kendrick thereof, stat- unless otherwise the pro- viously contacted some the same herein, ed as necessarily shall be follows: Jack Tru- have to be reversed and ren- 40%; Austin, 30%; ly, Clark, Jim Gearld in dered Appellants. favor of the It is 30%.” remarkably startling throughout that Appellee, record the refers to his own activ- Hence, to the Joint Venture ities involving development complete entered into interim center supervisory and his endeavors. The expressly that compen- covered specifically provides services, especially sation for his his devel- Appellee supervise “shall the con- opment services, plain language. struction and shall receive arrangements being As the made to from the Joint Venture sum of provide financing of the shopping $2,000.00 per month, beginning center, Security the First Bank in Beau- 1982, and continuing through December June, mont In early was contacted. or late $24,000.00.” for a total draw May, First Security Bank of However, during it is clear that the trial requested Beaumont a financial statement and, fact, began, even the trial before Appellee promptly who sent Appellee court, open formally, aban- bank, bank a financial statement. The be- doned his claim on the contract and ing satisfied, agreed to make the loan. At proceeded theory quan- forward on time, Appellee some Austin called and ad- tum meruit. vised him of the closing. date the loan opening When the statements were made Appellee There is evidence that made no jury, to the Appellee’s attorney took complaint. He excused himself at that unequivocal position claim or time, stating that his son was graduating cause of Truly action had under the high Hence, from school. another time for waived; contract was abandoned closing Although was set. notified of proceeding only theory quan- on the time, closing Appellee second did not attorney tum meruit. His of record said: attend. suing “... What we’re here for is the March, 1983, filed reasonable value of the services Mr. Tru- against Appellants. his suit think, We ly rendered in shop- connection record, under this provisions entire ping going center. And we’re to be Agreement, of the Joint Venture that this *6 presenting you you evidence to to allow appeal should as a be decided matter of law try what the calculate value of rather than on the basis of factual dis those were.” services putes. However, jury the answered in the Truly’s attorney jury: also said to the Special in response affirmative Issue No. during “The evidence show 5, will the reading: Truly five put months before Mr. you “Do the find that instrument dated project expended out of the he considera- 22, January ‘Agreement 1982 to Enter time, effort, ble service in carrying Agreement’ into a gov- Joint Venture obligations out his the under contract.” relationship erned the dur- ing work, start-up phase Appellee argued the Crossroads For the 5 months Shopping $215,480.00, Center? for a recovery plus of over $70,000.00attorney’s fees.
“Answer ‘Yes’ ‘No.’ “Answer: Yes” appeal We.decide that this should be We quantum governed by deem that the meruit award a well-established rule of law precluded as a matter of that recovery quantum law because on meruit is disal shop- services and lowed if a clearly contract exists that cov ping center specifically by subject covered ers the the claim. matter of Wood unambiguous, and, States, Inc., agreement written ard v. 384 S.W.2d Southwest hence, any Appellee, (Tex.1964) in judgment favor of 674 is a and watershed landmark meruit, Woodard, solely quantum In find: supra, on would case. we
919
express
ject
contract and
matter exists there
“Recovery on an
can be no recov
upon
implied
quantum
ery
on
meruit are inconsistent.
a contract
law.
express
States, Inc.,
a valid
con
v.
384
Where there exists
Woodard
Southwest
matter,
(Tex.1964). However,
covering
subject
there
tract
S.W.2d 674
the ex
implied
Gammage
express
can
contract.
v.
istence of an
contract does not
Alexander,
414;
preclude recovery
quantum
14 Tex.
Electric
in
Dallas
meruit
Co.,
Co.,
ren
Supply
Inc. v. Branum
185
reasonable value
services
423,
accepted
Tex.Civ.App.,
143
dered and
which are not cover
S.W.2d
affirmed
contract.
v.
427;
City
ed
Yingling
Tex.
185 S.W.2d
v.
Galveston
O’Mara,
(Tex.Civ.App.—
Klotz,
146 S.W.2d
Tex.Civ.App., wr.
1940),
correctly
as
n.r.e.;
Galveston
Dickey, 44 Tex.Civ.
ref.
Walker v.
affirmed
announcing the
138 Tex.
ref.;
App.
er.
98 S.W.
Fordtran
(1941).”
226,113
Stowers,
Tex.Civ.App.
S.W.
631, 1908.”
interesting
It is
to note that Union Con-
Company’s
recovery,
struction
claim for
situation,
Court,
Supreme
such a
meruit,
quantum
based on
was denied.
case,
recovery
held that a
the Woodard
The court stated:
theory
simply
meruit is
Moreover,
“... We hold that Union’s claim for
jury
available.
found that
22, 1982,
costs incurred
January
agreement
additional
because
covered
failure to
neces-
Black Lake’s
furnish the
Appellee’s
matter of the
claim.
(item 5)
pipe
sary line
is not a claim for
Appellee plead
Importantly, the
the exist-
extra work and is not recoverable
primary
ence of
contract as his
claim or
This is not a claim
quantum meruit.
action, attaching
cause of
for beneficial services rendered
original petition
an exhibit to his
and his
knowingly accepted;
closely re-
it more
Original
Appellee
Amended
First
Petition.
an action for breach of con-
sembles
introduced the
into evidence.
tract. ...”
deny
did not
the existence of the
agreement,
validity
nor the
nor the force of
testimony,
own
as to his
22, 1982,
January
written contract.
endeavors, lucidly
they
demonstrated that
startling
Appellee,
More
is the fact that the
unambig-
and described in an
were covered
pleadings, expressly
his own
limited his
uous,
express
That
valid and
contract.
quantum meruit claim to the services that
specifically
unam-
expressly,
contract
he
render under the
was to
provided
super-
biguously
“shall
agreement.
pleaded:
He
development”
construction and
vise the
"... Plaintiff would show that
con-
Pipe
center. Black Lake
good
performance
nection
his
faith
Co., supra,
involved
venturers.
Line
obligations under
the terms
We determine
contract,
parties’
he
rendered
has
agreement governed
relationship
be
services_”
(Emphasis
valuable
add-
and,
these
as a matter of law
tween
*7
ed)
law,
unambig
this clear and
as a matter of
Pipe
In Black Lake
Line Co. v. Union
paramountly cov
uous written instrument
(Tex.
Co., 538 S.W.2d
86-87
Const.
Appellee’s claim.
subject
matter of
ered
1976),
stated, as a
correct
the court
basic
Realty
Finance
Maykus
City
v. First
&
following:
premise, the
(Tex.Civ.App
Corp.,
“... primary evidence Hence, judge ter of law. the learned trial [Nevertheless relationship them. It between awarding damages erred in and attor- states the intention of the to form ney’s Appellee. fee in favor of (1) (2) ‘partnership’ acquisition, a The Joint as a Venture development, particu-
commercial of two Partnership General lar tracts of land. It establishes that City beneficiary First is the for which abundantly It is clear under this Maykus acting signing is as trustee in development record that the of the Cross the Brownwell contract ... defines Shopping definitely roads Center was Maykus the circumstances under which joint actually venture. It was so described required will be to return the two thou- in the written document of dollars, provides sand that under 1982. It is a fundamental rule of law that those party circumstances neither shall venture, is, such as this one also liability further oth- Being general general partnership. part er....” nership, this venture is to the Texas Act, Partnership Uniform TEX.REV.CIV. The court held that the letter of intent’s (Ver 6132b, seq. art. sec. et completeness, STAT.ANN. respect lack to the Supp.1986). The venture, non 1970 and Vernon well development phase of the did not that, by agreeing rule to a settled of law is prevent being respect it from effective with joint venture for the acquisition phase, to the since a contract center, Appellee agreed to may fully goes, be enforceable as far it become for the debts incurred though liable may even some other matters scope as a matter of trading negotia- left for later and further *8 Inc., law. tions. Ingle Pacific, Scott v. Bros. (Tex.1972). Johnson, 601 Hackney In (Tex.Civ.App. writ ref’d n.r. Maykus, supra, the court further Paso — El e.), find:
wrote: we “Q you agree- show us in the “If the three tenants could be con- Would acting joint prior says you there it that have as as venturers ment where sidered corpo- personal liability? contemplated the formation of a no same, ration, the as the results would be specify liability. “A doesn’t no It generally governed joint venturers are applicable partners. rules ...” the “Q nothing agree- in And there is the wrote, page The court further at 525: says you personal ment that that have no liability?
"... The Defendant relies on Article 6132b, Partnership Sec. Texas Uniform nothing says in I “A There is there Act, (1) provides which subsection do, either. agent partner- is of the every partner “Q exactly right. That’s Is there business, purpose ship of its says you anything in that partner apparently that the act of a percent point get forty don’t of three two way carrying on the usual of business million dollars? partner- partnership binds interpret “A that. I I don’t heard ship....” into that this you try to talk Mr. Arnold that, by entering joint We deem into agree, morning, and he didn’t either. agreement, Appellee’s status was venture agreement, “Q me in the if So show being general partner general that of would, you jury you and tell the where then, partnership. Undoubtedly, he be- get forty percent point don’t three two came for the debts and liable liabilities dollars. five ohmillion [sic] partnership. must be remembered Okay. ownership “A interest of that, 22, 1982, January under the Joint right partic- parties including their Agreement, Appellee’s interest Venture ipate profits in the thereof unless other- profits in the would be Under 40%. Truly, forty; as wise stated are follows: record, right as a matter of Austin, Clark, thirty; thirty.” Appel- share in made the 40% 6132b, art. TEX.REV.CIVSTAT.ANN. lee liable for the debts and losses as 40% (Vernon 1970), entitled “Nature of sec. 15 joint between the and the other Liability” Partner’s mandates: venturers. Since debts liabilities jointly partners “All are liable and sev- financing necessary involved with the erally obligations debts and for all and usual debts and incurred in liabilities including those under partnership ordinary scope usual course and added) (Emphasis 13 and 14.” Sections be, partnership, Appellee as to would bank, party, Furthermore, 6132b, 18(l)(a) third such as the liable for sec. art. debt, (e) reads, pertinent parts: to his recovery against co-joint make his ventur- “(a) partner repaid shall be Each ers. to- ... and must contribute contributions losses, capital ward the whether Furthermore, it must be stressed otherwise, partnership sustained Joint Venture profits. according to his share in the Agreement drafted against the lawyer and should be construed Appellee. Temple-Eastex, Inc. v. Addison “(e) rights in equal partners All (Tex.1984).
Bank,
But this
Appellee conceded that Partnership The Texas Uniform paragraph provision “TUPA”, Act, lia- sometimes abbreviated provides that he is not force and effect losses. came into full venture debts or ble for 1962, being in TEX.REV.CIV. codified We find: *9 922 6132b, (Ver- seq.
STAT.ANN art. sec. 1 et A joint venture joint or adventure has 1970). non The Act has held definitely been to be been and authoritatively de- applicable partnerships regardless all of scribed Supreme identified brought Lorino, they 446, when Court in 124 into existence. Holcombe v. Tex. Act, 307, Clearly, (Tex.1935): 79 partners under this S.W.2d 310 something in nature of property right a general “... The respect rule with in his or her interest in partnership. joint adventures in p. is stated 33 CJ. 841, as joint follows: ‘A adventure has 6132b, CIV.STAT.ANN. TEX.REV art. aptly “special been defined as a combina- 18(l)(a) (Vernon 1970) sec. reads as follows: tion of persons, two or more where in “(a) partner repaid Each shall be his specific profit some jointly venture a contributions, capital whether way of sought partnership without actual or or advances to the partnership property, ’ corporate designation.” equally and share in and sur- “The rule is in also defined 25 Texas plus remaining liabilities, after all includ- 160, Jurisprudence, pp. in 159 ing satisfied; partners, those to are following language: ‘It is constituted by losses, must contribute toward the special persons a combination otherwise, capital whether or sus- particu- nature a partnership —more tained by partnership according larly, a special partnership— limited or profits.” (Emphasis share in the engaged joint in the prosecution of a added) particular transaction mutual for benefit Importantly, joint a venture has been profit’.” held, by Supreme definitely Court to be descriptions joint Those definitions and in the partnership. nature of a Brown v. fit precisely ventures our record here. In Cole, 624, 704, 155 Tex. 291 S.W.2d 709 deed, Watson, own our court in v. 521 Ives (1956). quote: We 930, (Tex.Civ.App. S.W.2d 934 — Beaumont joint “To a constitute adventure there 1975, n.r.e.), ref’d writ wrote: must be community interest passing upon “In defendant’s attack participation profits. It is upon the factual basis the conclusion partnership engaged nature of a in the between joint prosecution particular of a transac venture, joint we turn the lead- tion profit. for mutual Holcombe Lor ing Cole, on the subject. case Brown v. ino, 446, 124 79 Tex. S.W.2d 307. Tex. 155 291 59 (1956), 1011
A.L.R.2d where the Court relationship being “... The in the na- spoke of some of the factors be con- partnership, ture of a must losses in determining joint sidered whether a profits.” shared as as existed, well saying: venture “ joint ‘Toconstitute adventure there partners, It has been that when held community must be a interest and venturers, joint engaged joint are in a participation profits. in the It is in the prosecution accomplish- mutual engaged partnership nature of a singular type ment of a transaction joint prosecution trans- particular of a profit, their mutual benefit or losses must profit. action for Holcombe v. mutual profits. be shared as as well Brown v. ” Lorino, 124 S.W.2d 307.’ Tex. Cole, supra. venture has been equated partnership. to a v. Lam- Rice 509 S.W.2d Phillips, See also Lane v. bert, (Tex.Civ.App.— (Tex.Civ.App. writ — Beaumont Corpus writ). Christi n.r.e.). holding, our ref’d We reaffirm reading: relationship
“... Since accord partnership, is in of a losses “The are not in as to the the nature governing our profits, must he shared well as law determination Tex.Jur.2d, relationship p. 288.” which was created their sec.
923 6132b, 1, 15, (Vernon joint agreement of the 18 1970 and execution venture sec. Ver- Supp.1986). non just noticed. We that our deter- believe under the rule mination must be made clear, agreement, their it is un- Under Duncan, 44 Thompson v. announced unambiguous agree- equivocal and 904, 1932), (Tex.Com.App., S.W.2d 907 definitely provides Appellee ment that Judge Leddy wherein said: partnership for of the will be liable 40% “ joint ‘Courts do not treat a venture obligations and made the due debts partnership, yet as identical it is with scope partnership course and of the as be- universally held that such relation is so partners himself and the other two tween n partnership similar in its nature to a and 6132b, joint or venturers. Article Sec. in the contractual relation created there- 18(l)(a) provides, portion: in material rights as to the are members partner to- “Each ... must contribute governed by substantially the same rules losses, capital or ward the whether of govern partnerships.’ otherwise, partnership sustained also, Peckham, v. 132 according profits.”
“See
Johnson
to his share in the
148,
786,
(1938),
added)
(Emphasis
Tex.
120 S.W.2d
788
and
Cowan,
468
Woodrum v.
S.W.2d
Undoubtedly, that contribution would be
Austin, 1971).”
(Tex.Civ.App.,
598
language,
in different
is
Stated
it
40%.
Lee,
(Tex.
clear,
glaringly
v.
Indeed, Appellee, the in his first document, cogently shown that the written petition, pleaded unequivocally amended here, such as one definitely provides the he and Austin and entered into Clark parties’ more evidence of agreement reliable the inten joint to form a venture for agreements superior tions purpose development of and to oral the commercial of estate; is testimony. especially This a parcel pleading a of real further true after that, pursuant par dispute case, certainly arisen. In our agreement, to that the has January prior contemporary negotiations ties executed a written on all and contract 22, 1982, setting respective promises merged, forth the inter of as a matter obligations law, joint of to the agreement. ests the into the venture joint says, Indeed, Truly supra. said venture. further Maykus, it is clear that pleadings, he loyal his “holds a owner joint obligation 40% venturers have an of ship interest in the property the owned ty enterprise. rule to the common This venture” joint right as well as to of applies a especially party 40% to the entrusted pleads: of He joint the the venture. development the with the conduct of which, case, enterprise, Truly. in this was “... obligations Plaintiff’s under the Hull, 39, v. 150 Tex. 237 Fitz-Gerald parties’ supervise contract are to the con- 256, (1951). 264 S.W.2d of struction and the said property, real for which he was to re- $2,000.00per
ceive additional sum of Truly’s Exhibit No. 23 month, beginning 1, January 1982.” though his Even waived Hence, by Truly his limited pleadings, trial rights under written contract $2,000.00 recovery begin- to his a month agreement, posture during trial 1, January ning Truly performed 1982. proceeding only was on the that he 4, after June He is bound services nevertheless, meruit; theory quantum of pleading meruit quantum on the them, jury, when he to the he asked went theory. exhibit, by an to consider the fact that he find the venture to We of should recover the monies raised 40% (cid:127) unambiguous. But a valid fall be we have McDonald’s, from certain transactions with position Special No. back Issue well-known, nationwide, chain of fast thereto, find- jury’s specifically answer Truly’s out foods. Exhibit No. 23 sets 22, 1982, agreement ing of specifically, major heading .under the parties. governed relationship of Meruit”, “Quantum request or demand sought damages duration of for a McDonald’s, recovery which 40% than, entirely in- time which was less but $110,000.00, $44,000.00. equaling This in, period beginning cluded simply inconsistent with his announcement 31, 1983. The through December and, under the contract proceeding of not specifically contract and solemn also, quantum is hostile his claim of $24,000.00 period total for this put reason, If, meruit. for some he does time. quantum recover on meruit— which, contract, he does under obligations parties are to nevertheless, proper measurement not— determined, from the as a matter of be quantum be: damages meruit would wording language and may ... “One recover on 143 Tex. Burgess Sylvester, agreement. (1944); reasonable value services Wynne meruit rendered, Appellee, Truly, simply presented never knowingly accepted, Austin, price Appellants, proper exceeding contract Clark and amount added) (Emphasis correct, presentment of a valid claim. basic, underlying purpose and cardinal Land Bank Colbert v. Dallas Joint Stock (Ver art. 2226 TEX.REV.CIVSTATANN. Dallas, 129 Tex. of (1937). 1971) definitely requires that a valid non fact, it is shown this record payment just of a amount claim for the in a slavish jury followed almost owed, presented had to that was No. manner Exhibit [Plaintiff’s] theory pri Appellants. The behind which reads follows: person is to allow the mary purpose MERUIT “QUANTUM alleged persons against whom the claim is BEALLS = 20 yrs. the statute to inves days to have 30 under $6,750/mo. min. X = 81,000 $1,620,000.00 $ and, claim, tigate if it the claim is a valid ECKARDS thereby pay the same and avoid unneces *12 x = 20 min. yrs. $5,040/mo. sary attorney’s To court costs fees. = 60,480 5% $1,209,600.00 claim”, present under and set out “valid mcdonalds statute, the claimant must have a “val = 44,000 $110,000.00 40% just owing. id for a amount The claim” SERVICES Petition, (Plaintiff’s) Original = 30,000 300 hrs. X $100/hr. record, pleadings, simply other under this $215,480” TOTAL presentation cannot considered as a of a be jury’s Appel- The verdict and to the award Appellee's just valid claim for a amount. $215,480.00. lee in the exact amount pleadings they are so indefinite that cannot Truly’s pro- The had to be contractual just owing. a demand for a amount be prietary interest. is, by very is a statute that its Article 2226 one, nature, necessitating a strict penal
Construing the Joint Venture
v.
Agreement
construction.
Fort Worth
VanZandt
But,
Press,
(Tex.1962).
893
it is
359 S.W.2d
construing
agree
this written
record in this
glaringly
also
clear that the
ment,
duty
it is our
to seek the intention of
absolutely
none of the
case shows
properly
as that intention is
set
proffered by
Ap-
testimony or evidence
agreement.
forth in the
McMahon v.
upon any
presenta
sort of a
pellee touches
403,
Christmann, 157 Tex.
2 R.
TEXAS LAW OF EVIDENCE
I
majority
concur
for these rea-
CRIMINAL,
(Texas
AND
sec. 1601
CIVIL
sons:
1980). Clearly,
Practice 3rd ed.
the con-
January 22,
tract
was a written
First,
by
positive
is no
there
contention
signed by
parties
instrument
all the
colleagues,
anybody my
testimony,
—
superceded any previous agreements or
pleadings
ques
the contract in
—that
contemporary agreements which were rele-
jury found,
ef
ambiguous.
tion is
The
to
vant
the same
matter as the
fect,
If
unambiguous, and that
it is
is so.
writing of
Ray,
1982.
R.
Appeals
Court of
was ever made aware
TEXAS LAW OF EVIDENCE CIVIL
fact,
legal
our
consequences
of this
(Texas
AND CRIMINAL sec.
Practice
(Del
Company
In
court was.
Sun Oil
1980).
ed.
3rd
aware)
(Tex.
sulting in a reduction of the value of the
I concur in the remand because the trial
Madeleys, saying,
contract for the
inter alia
entering judgment
court erred in
(at 727-728):
jury
amount found
be the reason-
lease,
“In construing this
it is our task
able value of the services
Appel-
rendered.
seek the intention of the
lease,
attempted
prove
lee
fair and reason-
that intention
expressed
in the
able value of
the services rendered
two
[citing authority] The courts will en-
thusly:
methods summarized
force an unambiguous instrument as
written; and,
ordinary case,
in the
Q
effect,
we’ve
what
tried to do here
writing alone will
deemed
express
give
jury
is to
two different methods
intention of the
[citing au-
placing
evaluation
the services Mr.
added)
(emphasis
thorities].”
Truly
project;
rendered on that
is it not?
The terms of the contract at bar are
Yes,
A
sir.
quite clear and specific. “The ownership
Q
hand,
testimony
On
one
re-
parties,
interests of the
including their
garding the lease commission and the
participate
thereof
services, taking
value of his
analysis
... shall
Truly
be as
Jack
[appel-
follows:
it,
of would he have arrived at this two
lee], 40%;
appellee
...” Of course
would
hundred fifteen thousand four hundred
(if financed)
pay or
pro
owe
rata share
eighty
figure?
dollar
of the cost
building.
Right.
Then what is the finder of the facts to
Q
hand, if
On the other
we look at the
determine on remand?
partic-
value of what his interest in the
grants
$2,000
One
clause
per
ipation
completion
project
and the
*14
beginning
1, 1982,
month
through
is,
up
we come with a three hundred one
supervision
December
for
twenty
fig-
thousand nine hundred
dollar
development and construction. The fact
ure?
finder must
portion
what
determine
of this
Yes,
sir.
appellee.
is due
Since
have an
Both of these
contain
methods
at least
contract,
unambiguous
appellee may not
element, i.e.,
one common
a calculation
quantum
recover on
meruit. Woodard v.
upon
based
the full
interest
in the
40%
Inc.,
States,
Southwest
ard’s bar: existence of express contract
[T]he preclude recovery not
does
meruit for the reasonable value servic-
es rendered and are not accepted which by the covered contract. Gary Hodges WASHBURN and Sharron Appellee’s claim does fall within not Washburn, Individually Repre contract in this case. Howard S. sentatives Estate of The instrument ti- executed Washburn, Deceased, Appellants, tled, “Agreement to Enter Into a Joint Agreement”, agreement to Venture anwas ASSOCIATED INDEMNITY establish, future, at some time in the CORPORATION, Appellee. relationship venturers. It recited that, agree- Parties reach “the desire to No. 05-86-00174-CV. on several of and condi- ment the terms Texas, Appeals Court Venture”, governing their tions Joint Dallas. stated, “The into further Parties will enter a Joint Venture....” Dec. 1986. contractually did de This instrument Rehearing Denied Jan. in se Truly’s the value services termine *15 curing center. leases nothing more than an Further, agreement. a future enter into exchange his services
since
something determinable other than a (the money interest in the
amount of he could received the rea
property), if he had value of even
sonable services Schoeneman, performed.
fully Coon v. (Tex.Civ.App. — Dallas n.r.e.). ref’d I hold as writ would did
matter of law instrument and, claim matter of the
cover
therefore, lie. meruit does