30 S.W. 536 | Tex. | 1895
We are of the opinion that the Court of Civil Appeals did not err in charging the jury as stated in the question certified.
We are inclined to think, that it was a matter of no importance whether, in employing the firm of Shook Dittmar, Landa contracted specially for the professional services of Dittmar or not. But the services of Dittmar having been contracted for, when he died, the performance of the contract was impossible; and this result was brought about without the fault of either party. The contract was at an end. It was annulled by the happening of an event not expressly provided for in the agreement between the parties. Clearly, Dittmar having died, Landa had the right to decline to accept the services of Shook in performance of the contract on part of the firm. Whether Shook would have been bound to defend the suit to the end, had Landa demanded it, is a question we need not determine. Shook having offered his services, and Landa having declined to accept them, the latter became liable to pay the reasonable value of the services already rendered. The cause of action was, however, not upon the contract, for that, as we have seen, had ceased to have any effect. Landa had received the benefit of the services of the firm, and the law implies a promise that he should pay for them. The services of Dittmar in defending the suit to its final determination was a condition precedent to a recovery upon the contract. Not having performed the contract on their part, nothing in their behalf can be claimed under it. But its performance having become impossible, without any fault on their part, compensation was due for the services actually rendered, and for this the surviving partner was entitled to sue. The cause of action arose incidentally as a result of the contract, but it was not a cause of action upon the contract. It was not regulated by the terms of the agreement; and it accrued, if not at the time the contract ceased to exist, at least as soon as Landa declined to receive Shook's services in performance of the agreement. *612
The case is not distinguishable from any other action for the value of services performed in which there is no express contract for the services. The cause of action accrues when the services are rendered.
Delivered March 25, 1895.
DENMAN, Associate Justice, did not sit in this case.
