*1 Co., (Tex.1984), or under right from IPC. and its own to contribution statute, comparative negligence trial, Although Barkley appear did at Ann. 33.001 et Civ.Prac. & Rem.Code though as it had. the case was submitted (Vernon 1987), seq. could not create jury tried to a found The case was which plaintiff’s by purchasing one entire Purina in both negligent IPC liable precisely is cause of action. This what jury products liability. The negligence and present in the argues Purina it has done against Purina apportioned 70% case, right to define its although it chooses damages, Regarding IPC. and 30% under the settlement to reimbursement however, jury answered “0” when right of direct action rather as a money necessary of asked the amount right than a contribution. of reasonably compensate Barkley for the general As a cause of action rule a by the chick- damages caused contaminated public assigned, contrary be but it is judgment, en In its the trial court feed. permit right policy tortfeasor as de- aligned Purina as and IPC purchase plain- of action from a a cause judgment rendered that the fendant and injury tortfeasor tiff whose contrib- nothing. take Purina Jinkins, Purina could uted. Under settle appealed, arguing the record Purina that of only proportionate its share Barkley matter of as a established law preserve right could not to contribution damages in of sustained the amount had by taking assignment Barkley’s of an $319,987.17. agreed, appeals The court of cause of action. judgment of the trial court reversed Appeals judgment of of the Court judgment “Barkley re- and rendered reversed and $95,996.16, representing cover from IPC nothing. Purina take $319,987.15....” 30% name, Purina does not mention but was
probably intended for its benefit because recognized earlier Pu-
the court of assignee Barkley’s cause
rina to be the also because was the action and Purina
only party perfected appeal judgment.
the trial court’s appeal
Throughout this Purina has con- assignee Barkley’s
tended that it is deciding
cause of action. Without whether agreement actually accom-
the settlement
plished purpose, this we will assume that Barkley and Purina intended this result. Petitioner, TRULY, Jack D. assumed, the reduces to
With this fact ease v. settling joint tort- single issue. Can right to feasor reimbursement AUSTIN, al., Respondents. et James D. non-settling joint from a or contribution No. C-6087. by taking assignment tortfeasor cause of plaintiff’s common action? Supreme Court Jinkins, Corp. In Beech Aircraft 17, 1988. Feb. (Tex.1987),this held that a March 1988. Rehearing Denied propor- could settle its tortfeasor plaintiff’s a common cause tionate share of settling We said that a defend- action. at not have a to contribution
ant did law, Duncan v.
common Cessna Aircraft
Seale, Stover, Coffield,
Bis-
Gatlin
Bisbey,
petitioner.
bey,
Jasper,
Blair A.
Golden,
Gray,
Jas-
Golden
Joe Bob
Tucker,
per, Orgain,
Gary
Bell and
Neale
Beaumont,
Reger,
respondents.
SPEARS,
judg-
The court of
Justice.
reversed
court, holding
ment of
trial
recov-
The issue in this case is whether a
ery
meruit is not allowed when
express
contract
breached
covering
there is an
contract
theory
nevertheless recover under
subject matter of the suit. The entire
Petitioner Jack
meruit.
cause was remanded to the trial court with
specified
as
in a
performed certain services
limiting Truly’s recovery
instructions
He later breach-
*3
Truly
plead
prove
that which
could
and
agreement by refusing
joint
ed the
under the written contract.
personal liability
ven-
to assume
Truly brought
ture
suit
Re-
debts.
rule,
general
plaintiff
As a
Clark,
spondents James Austin and Gearld
seeks to recover the reasonable value of
venturers,
he
co-joint
for the services
supplied
services rendered or materials
will
agreement.
rendered
to the
permitted
quantum
in
be
to recover
meruit
verdict,
trial
jury
Based on a
the
express
when there is no
contract
Truly.
judgment
in favor of
covering those services or materials.
court of
reversed that
Pipeline
Black Lake
Construc
Union
instructions.
and remanded the cause with
(Tex.1976);
Co., Inc.,
80,
538
86
tion
S.W.2d
affirm the
awarded pur- $70,000 for the attorney’s fees. ment to form a building or construc shop meruit have involved developing a financing pose of cases, plaintiffs In these contracts. pleadings tion He conceded ping center. the reason to recover respective have been allowed forth the set damages less value of services parties. As able obligations and interests of See, City e.g., defendant. venturer, suffered subject to was Connor, 35, Sherman v. Hack partners. apply to same rules that Stewart, City Ingleside v. (1895); Johnson, (Tex. ney v. n.r.e.). (Tex.Civ.App. Corpus ref’d Civ.App. Paso writ — — El n.r.e.). Central jointly severally Christi venturer quan to recover and obli the contractor’s venture debts liable 6132b, acceptance and tum meruit is the owner’s gations. Tex.Rev.Civ.Stat.Ann. art. Further, arising as a direct (Vernon 1970). of the benefits each retention 15 partial perform contractor’s obligation to share result of the assumes the venturer Building Contracts according share ance. 10 Tex.Jur.3d losses to his *4 18(l)(a). light at 292 Id. profits. of the § § provisions, agree with the court these we significantly Truly’s claim is differ law, that, Truly’s as a matter of appeals quantum ent the meruit claims made from financing of sign to the note for the refusal First, the in the construction cases. project constituted a joint the venture pro breaching in these cases contractors contrast, contract. Defend breach of and materials for the direct vided labor ants Austin and Clark neither breached the Truly, by property owners. benefit prevented Truly per contract nor contrast, rendering not services was for obligations. forming his contractual Instead, defendants, the Austin Clark. Therefore, Truly is not entitled to recover agreement, the venture theory quantum meruit. under this performed his services for the ven he meruit, quantum
Recovery quantum meruit is ture. To recover that his efforts were permitted plaintiff par sometimes a must show person sought to be tially performs is undertaken contract that for enough merely show nature. Colbert v. Dallas charged; it is not unilateral Dallas, Bank the defendant. Joint Stock Land 129 that his efforts benefitted Baptist Hospital Memorial Bashara (partial System, performance by sell of contract broker to Harrell, Benson v. estate); services for the Truly
real to enhance the success (Tex.Civ.App ture in an effort 2d 620 Worth . —Fort he n.r.e.) project in which (partial performance by profitability of a minerals). ownership Truly thus attorney to recover fee title to held a 40% interests cases, his own financial In these the unilateral contract im acted to benefit of his venturers. posed legal obligation plaintiff, no on the as well as those thus, plaintiff, and the did not breach cases, Second, in the construction Perillo, Con contract. See Calamari & tangible product of val- defendant retains 1-10, (1977). Truly’s tracts at 17-18 case, Austin and Clark were ue. In this type quantum meruit claim does not fit this Truly tangible after left with no benefit Truly entered into a because breached the bilateral contract in which he incurred personal Truly refused to When liability legal obligation personal to assume debt, inhe effect voluntarily joint venture debt. He very relationship that his ser- destroyed the refusing sign by breached the contract Truly’s designed to benefit. vices were development note. precipitated failure of breach way alleviated in no permitted project, fact only Texas cases that have Truly pre- quantum by supervisory services recover in viously performed. Truly, by expectations permeate his own ac- able and values that tions, caused the value of services business Accordingly, transactions. we evaporate. Truly may hold that Petitioner not recover quantum meruit. Truly
If had a meruit claim for services, the value of his it have would of the court of been itself for affirmed. performed.
whose benefit the services were Having terminated the KILGARLIN, J., concurring joined by breach, Truly impose personal seeks to own PHILLIPS, C.J., RAY, J. on Austin and Clark for repeatedly argued venture debt. KILGARLIN, Justice, concurring. that because the I concur in the court’s personal liability did expressly impose because Jack did not error debt, he on him for was not by seeking accounting, I which consider required obligation. to assume proper recoup to be the method for him to Ironically, impose personal he seeks to now to which he claims he is entitled. liability on Austin and Clark for such a Clearly, quantum is not the despite being express provi- debt there vehicle. imposing obligation sion on them. was involved venture. A Recovery partner venture is the nature of a equity. It is based well-settled that a Cole, ship. Brown v. 155 Tex. *5 party seeking equitable remedy must do 704, (1956); Holcombe v. 291 709 S.W.2d equity and come to court with hands. clean Lorino, 446, 455, 307, 124 Tex. 79 S.W.2d Co., City Wink v. Amusement of Griffith (1935). Consequently, 310-11 a 40, 695, (1936); 129 Tex. 100 S.W.2d 702 generally governed by ture is the rules Texas, Breaux v. Allied Bank partners. Thompson v. Dun applicable 599, (Tex.App. 2d 604 [14th — Houston can, 904, (Tex.Comm’n App. 44 S.W.2d 907 1985, n.r.e.). justify writ ref’d To Dist.] 1932, judgm’t adopted). See also J. Crane meruit, recovery Bromberg Crane and Bromberg, & A. must not that he show has rendered a Partnership (1968); 35 H. Reuschlein & § value, partial performance of but must also Handbook on the Law of Gregory, W. unjustly show that the defendant has been (1979); Agency Partnership and 266 47 § unjust enriched and the would be (1986). Tex.Jur.3d, Joint Ventures § 4 ly penalized permit if the defendant were when a venture partial ted to retain the benefits of the issue, silent on an this court will turn to the performance paying anything without See Park Partnership Act. Texas Uniform Corbin, Corbin on Con return. 5A A. 668, Corp. Byrd, v. Cities 534 S.W.2d 672 (1964). tracts § 1122 Equity support does not refusing sign development loan in this ren- case. note and several dered services to benefit debt, Truly for this breached large ownership which he held a agreement. Tex.Rev.Civ. agree- He then breached the 1970). 6132b, (Vernon art. 15 Stat.Ann. § ment, terminating accounting appropri A suit for an is the precipitating project. the failure of the remedy partner or ate venturer impose personal now seeks to liabili- part who has breached the venture or ty on his to an venturers v. Dob See Dobson nership agreement. imposes which he contends son, (Tex.Civ.App. 594 177 Truly, by on himself. his S.W.2d —Hous conduct, 1980, n.r.e.) (part course of has violated the reason- ton [1st Dist.]
939
excluding
Phillips,
v.
894
the other members
him from
Lane
nership);
509 S.W.2d
participation in the accrued assets.
1974,
ref’d
(Tex.Civ.App.
writ
— Beaumont
also Tex.Rev.
n.r.e.) (joint venture).
See
Ventures
Am.Jur.2d,
(1969).
38
Joint
46
§
(Vernon
6132b,
art.
22
Civ.Stat.Ann.
Tex.Jur.3d,
also 47
Joint Ventures
See
1970).
quan
agree
I
with the court that
11§
remedy
a suitable
tum meruit relief
not
non-breaching
ven-
The interests
by a
failed
sought
venturer who has
protected by
procedure.
this
turers are also
perform
obligations under the
his
breaching venturer
is not
entitled
See, e.g.,
v.
White
Id.
accruing after his
assets
default.
Lemley,
(Mo.1959); Pem-
Mo.App.
766
Fur
S.W.2d
by his
ages caused
misconduct.
ther,
at 181. The Dobson materially breaching
venturer
Fisher,
v.
from Fisher
damages
352 Mass.
quoted
not
under the contract.
(1967):
“A partner
227 N.E.2d
Josephthal,
122 Mise.
See Schnitzer
rights
not
in the
does
lose
accrued
affd,
16-17,
(1923),
202 N.Y.S.
by
profits of a firm
reason
breaches
(1924) (“As
App.Div.
Expelling a Partner: Commer- Securing Custody cial Divorce
Business, 78 Nw.U.L.Rev. 542 n. 57 commentary says: One In the of the ESTATE OF Matter GLOVER, Deceased. to be conducted Grace undertaking, parties to the and the fail- No. C-7120. completely perform ure of Supreme Court of part fully does ac- not forfeit his quired Notwithstanding de- Feb. 1988. omissions, each inter- faults and has an preserved assets been est as have by a
or accumulated. default justify
member of venture will ably policy reformed, S.W. Tex. 1. The some discusses lands). disfavoring procure (agency reasons mineral this context. course, obtain a different result would court, however, 2. Of incorrectly asserts contains permitting Texas cases Dobson, 181. have 594 S.W.2d at forfeiture clause. building contracts. involved or construction See, Rand, e.g., Cotton