owner whether Olander had an option on the land, when he found that he had no option and no authority to sell the land. Thereupon Connable undertook to negotiate with Nutt directly for the land, and told Olander that he would have nothing further to do with him in the matter, telling Olander that, as the cash payment required by Nutt was more than Candlish would pay, defendants would probably buy the land themselves, to which Olander objected. Defendants had nothing further to do with Olander, and, the negotiations with Ragley having failed, they were in order to comply with their contract with Candlish obliged to buy the property themselves. Thereafter, on April 16, 1905, by mutual agreement between themselves and Candlish, they took back all of the land except 7,000 acres. Subsequently Candlish defaulted in the payments required of him, and the contract became by its terms, and is now, forfeited. The represen. tations of Olander that he had an option on alleged upon information and belief that of the 3,942 acres released to defendants by Candlish defendants have sold to William Winter 585 acres at $12.50 per acre, to J. R. Quein 693 acres at $14.50 per acre, to O. L Beeson 199 acres at $14 per acre, to Oliver Newcomer 160 acres at $15 per acre, and to C. H. Burroughs 135 acres at $15 per acre, and that the remainder, which is still held by defendants in their own name, is worth $15 per acre. Defendants concealed from plaintiffs the sale of the lands to Candlish, and assured them that it had fallen through, and they did not learn of the sale until the spring of 1906. With much plenitude of detail, the charge of fraud on the part of defendants in buying the property from Nutt and themselves making a sale to Candlish is reiterated, together with the concealment of these facts from plaintiffs, in violation of the terms of the agreement aforesaid. Plaintiffs pray that they be allowed to take onehalf of the lands, paying defendants therefor at $7.50 per acre, or that they have judg-the land, exclusive control of the same, were ment for $27,250, being one-half of the profits made by defendants on the sale to Candlish, and, in the alternative, they pray for judgment for the reasonable value of their services in the matter, which is averred to be the sum of $27,250. false and made for the purpose of deceiving defendants, and that at no time up to the filing of the suit in the case (which was May 2, 1907) had plaintiffs set up any claim against defendants. The pleadings, especial The minous. We have endeavored to give the "(1) Was there or was there not such an agreement made between plaintiffs and defendants in July, 1905, as to co-operation and division of profits or commissions as plaintiff alleges in the third paragraph of his petition? You will answer this issue as follows: We find, in answer to issue No. 1, that there was, or we find there was not, such an agreement as stated in this paragraph (according as you find from all the evidence under the instructions heretofore given). By way of answer, defendants interposedly those of plaintiffs, are exceedingly volua general demurrer and general denial, and deny specially the existence of any partnership or agreement between themselves and plaintiffs. With regard to the purchase of the Nutt Ranch and sale thereof to Candlish, it is alleged that they had information regarding this and other property from the tax assessor, and went to Beeville for the pur pose of looking up such property. Meeting Olander at Beeville, he informed Connable that he would soon have a contract with the owner of the Nutt land for the exclusive sale thereof. Relying upon this, Connable went with Olander to inspect the property, and on their return Olander informed him that he had an option on the property, and defendants could buy it from him. Shortly thereafter Connable took Candlish to see the property in company with Olander, believing that what Olander had said as to having an option on the property was true, and thereafter, relying upon this and that Olander would sell the land to them, defendants entered into a contract of sale with Candlish on August 10, 1905, but, as Candlish would not pay as much cash as Nutt required, defendants entered into negotiations with one Ragley to buy from Nutt and sell to Candlish. Defendants thereupon, on August 10, 1905, wrote to Olander, desiring to know what would be satisfactory to him as his profit in the transaction, to which they received no reply. Defendants wrote other letters and telegraphed to Olander, to which no reply was received, and thereupon, becoming suspicious, Connable went to Beeville for the purpose of learning from the "(2) Did or did not Olander aid and assist in making the sale or contract of sale to Candlish at the request or with the knowledge and acquiescence of defendants? You will answer this issue as follows: We find, in answer to issue No. 2, that Olander did, or that he did not (according as you find from all the evidence). "(3) If you find that Olander did assist in making the sale or contract of sale to Candlish at the request or with the knowledge and acquiescence of defendants, you will say, in answer to this issue No. 3, what, if anything, is the reasonable value of Olander's services in that matter. "(4) Did defendants make out of the sale, or contract of sale, to Candlish, any profits? If you find that there were profits, you will say so, and say how much, in answer to this issue. If you find there were no profits made, you will so say in answer to this issue. "(5) Did or not Hahl & Co., defendants, believe when they made the sale to, or contract of sale with, Candlish that Olander had a written option or contract with Nutt to sell the place? You will answer this issue thus: We find that Hahl & Co. did believe or did not believe (according as you find from all the evidence), when they made the sale to, or contract of sale with, Candlish, that Olander had a written option or contract with Nutt to sell the place. "(6) Did defendants Hahl & Co. buy the property from Nutt in order to be able to deliver to Candlish because they found that Olander had no written contract with Nutt, or did they buy it from Nutt in order to defraud plaintiffs out of what he claimed as profits or pay for their services? In answer to this issue No. 6, you will answer according as you may find from all the evidence whether Hahl & Co. bought in order to be able to deliver to Candlish, or whether they bought to defraud plaintiffs out of their claims for commissions or profits. “(7) Did or not Olander endeavor to hinder or to prevent defendants from procuring the property known as the Nutt Ranch, or do anything to hinder or prevent the sale of said ranch by defendants to Candlish or any other party? In answer to issue No. 7 you will answer as follows: We find that Olander did or that he did not (according as you will find from all the evidence)." vent defendants from procuring the property known as the Nutt Ranch; and (b) that Olander did not endeavor to hinder or prevent the sale of said ranch by defendants to Candlish or any other party." By way of preliminary to our findings of fact, the proposition is laid down that such facts as are necessary to support the judg ment, and are not embraced in the special issues submitted, and the verdict thereon must be presumed to have been found by the court, if there be sufficient evidence in the record to sustain such findings. Article 1331, Sayles' Ann. Civ. St. 1897; Moore v. Pierson, 100 Tex. 113, 94 S. W. 1134. We adopt the findings of the jury as supported and authorized by the evidence. The first assignment of error assails the judgment of the court for $17,500 as the reasonable value of appellees' services on several grounds, which are set out in the several propositions stated under the assignment. The first proposition is that plaintiffs having sued upon a special contract, and the jury having found in favor of the existence of the contract, they could not be entitled, in any event, to a judgment upon quantum meruit. The principle of law that in a suit upon express contract no recovery can be had upon an implied contract or upon quantum meruit is well settled, and does not require citation of authority in its support. We do not think it is applicable in the present case. The petition, it is true, sets up an express contract, alleged the performance by appellees, through Olander, of services in the matter of the sale to Candlish, and prayed for judgment under the contract for one-half of the profits made by appellants. The jury found that the contract as alleged was entered into, and that the gross profits made by appellants was $54.500. All of the facts, however, were set out in the petition, and there was a prayer in the alternative for the value of appellees' serv The jury answered as follows: "We, the jury, find in answer to issue No. 1 that there was such an agreement as stated in paragraph 3 of plaintiffs' petition. "(2) We find in answer to issue No. 2 that Olander did aid and assist in making the contract of sale to Candlish at the request or with the knowledge and acquiescence of defend-ices alleged to be $27,250, or a sum equal to ants. "(3) We find in answer to issue No. 3 that Olander did assist in making the sale or contract of sale to Candlish at the request or with the knowledge and acquiescence of defendants, and that the reasonable value of Olander's services in this matter is $17,500. "(4) We find in answer to issue No. 4 that defendants made out of the sale or contract of sale gross profits aggregating $54,500. one-half of the profits. It is not found by the jury that the transaction was one embraced in the terms of the contract nor is such finding necessary to support the judgment. On the contrary, the judgment is inconsistent with such finding. The contract provided for co-operation between appellants and appellees in the business of selling lands for other parties. It contemplated that if appellants sold any land of which they were agents to a customer procured by appellees, or vice versa, whatever profits should be made should be equally divided, and that in making such sales they should co-operate and mutually assist each other. That is the substance and effect of the contract. In what Olander did he thought he was assisting appellants in making a sale to Candlish of the land of Nutt, but, in fact, that is not what he was doing. He was assisting appellants to "(7) (a) We find in answer to issue No. 7 sell their own land to Candlish, appellants "(5) We find in answer to issue No. 5 that Hahl & Co. did not believe when they made the sale to or contract of sale with Candlish that Olander had a written option or contract with Nutt. "(C) We find in answer to issue No. 6 that defendants Hahl & Co. bought the property from Nutt in order to defraud plaintiff out of what he claimed as profits or pay for their services. and in the matter of themselves procuring | lish had been entered into, written him in title from Nutt, to carry out the scheme substance telling him that no such contract whereby they made a most profitable bargain, had been made. These facts and others are and whether the sale to Candlish was a com- the basis of the jury's finding that appellants' pleted sale or not, and whether he paid for purpose was to defraud appellees. In this the land or not, in accordance with the terms state of the case appellees did not forfeit of his contract, nevertheless the undisputed their right to compensation for the value of evidence shows that for $7.50 per acre ap- their services to back the game of appellants, pellants procured title to the land worth from and in trying to assist appellants in enabling $15 to $20 per acre. But this was not the them to make this profitable bargain by trying kind of business embraced in the contract. to get the title in their own name, which the Moreover, we do not think the evidence shows jury finds was done to defraud appellees. such a sale to Candlish as would under the That the services of Olander did enable apcontract have entitled appellees to one-half pellants to get the land from Nutt as well as of the profits arising therefrom under the to sell it to Candlish is a fact necessary to contract. The jury does not so find, nor is sustain the judgment, and must be found; such finding necessary to support the verdict. the evidence sufficiently authorizing such findUnder the pleadings and proof, we think ap- ing. The third proposition advanced by appellees were not confined to a recovery under pellants under the first assignment is that the terms of the express contract, nor debar- plaintiffs are not entitled to recover upon a red from recovery of the value of their serv- quantum meruit, because there is no evidence ices on a quantum meruit, according to their that any services were rendered at the reprayer. Appellants accepted appellee's serv- quest of defendants, and there is no evidence ice and have reaped the fruits thereof. They of an implied undertaking to pay therefor. cannot be heard to deny him the profits earn- We think that the finding of the jury in reply ed under the contract without paying him the to the second question is a sufficient answer value of his services. to this proposition. We think the first assignment of error should be overruled. The second proposition under this assignment is that appellees are not entitled to recover on a quantum meruit, because the undisputed evidence shows, and the jury found, that appellees after the rendition of the services alluded to, and before any contract had been secured from the owner of the land, endeavored to prevent appellants from procuring the land, and thus undertook to nullify any benefit derived by appellants from their services. The jury in answer to the seventh special issue found that "Olander did endeavor to hinder or prevent defendants from procuring the property known as the Nutt Ranch, and that Olander did not endeavor to hinder or prevent the sale of said ranch by defendants to Candlish." The only evidence upon which the first part of this answer could be predicated, is that Olander procured Nutt to send the telegram to Burton in Chicago to the effect that he had not sold the land to Hahl & Co., and that Hahl & Co. had no authority to represent him in such sale. Olander's testimony probably furnished the basis for this finding, and his action is explained by the fact, as stated by him, that this was done after he had discovered that appellants were trying to procure the title from Nutt, and themselves sell to Candlish, to defraud appellees of their share of the profits. Olander had placed the property with appellants to sell under the agreement between appellees and appellants, and had assisted them in making the contract of sale with Candlish under the expectation that they were to share the profits. Appellants had availed themselves of their services in first bringing the property to their notice and afterwards in making the sale to Candlish. They had studiously concealed their action from Olander; The second assignment of error and the propositions thereunder complain of the action of the court in overruling the motion for a new trial on the grounds (1) that there was no evidence as to the reasonable value of Olander's services; and (2) that the amount found by the jury is excessive. In support of the first proposition as to lack of evidence, appellants cite McCormick v. Bush, 47 Tex. 195, from the Supreme Court of this state. and Sayers v. Craven (Kansas City Court of Appeals) 107 Mo. App. 407, 81 S. W. 475, and Bradner v. Rockdale Powder Co. (St. Louis Court of Appeals) 115 Mo. App. 102, 91 S. W. 1000. The case of McCormick v. Bush is not in point. In that case it was held that the contract provided the only basis of compensation, and that there was no evidence from which the jury could find the amount to which plaintiff was entitled. The jury gave him what he testified was the reasonable value of his services, but the Supreme Court held he was only entitled to recover the compensation provided under the contract that is, the proportional value with that which he should receive for the entire service he had agreed to render-and not, on a quantum meruit, the value of his services, and that there was no evidence upon which a recovery on this basis could be had. The other two cases are more nearly in point, and strongly tend to support appellants' contention that the jury could not, from the nature of the services performed, without other evidence of their value, find what was the reasonable value of such services. The holding, however, seems to us to be in conflict with Hull v. St. Louis, 138 Mo. 618, 40 S. W. 89, 42 L. R. A. 753. It is not to be There is no merit in the third assignment. We do not think the findings of the jury in answer to special issue No. 7 are contradictory. Olander may quite consistently have endeavored to prevent appellants from acquiring the property in their own name, and thus operating outside of the contract with appellees, and, as found by the jury, defrauding them, and still not have endeavored to prevent the sale to Candlish direct, as agents of Nutt. We cannot agree with appellants that the finding of the jury that Olander did not endeavor to prevent a sale to Candlish is against the great weight and preponderance of the evidence to such an extent as would authorize this court to set aside the finding; the trial court having refused to do so. difficulty. We are constrained to hold, how- | uncontradicted evidence, appellants' profits ever, that appellants' contention should not are very largely in excess of that amount. be sustained. The jury were in full posses- Through Olander's efforts, or by his assission of all of the details of the entire trans- tance, appellants secured the sale of this land action of the services performed by Olander at a commission, if the sale had been proand the result to appellants therefrom. We cured by them as agents of Nutt, of all they do not think that the nature of the transac- could sell it for in excess of $7.50 per acre. tion, and of the services, was such that the If they had done so, under the contract, apjury could not from their own knowledge pellees would have been entitled to one-half form an intelligent judgment of the value of such profits. This shows to some extent of the services. It seems to be the well- the value that was put by appellants on settled rule that if witnesses claiming to such services. All of these things were prophave special knowledge had testified as to erly taken into consideration by the jury in the value of the services, and such testimony arriving at a conclusion of the value of the had been uncontradicted, the jury might services. We cannot say that the amount have disregarded such evidence and found found by them, while quite liberal, is so contrary thereto, and that such finding would large as to indicate that it was not the rebe sustained. Railway Co. v. Lacy, 86 Tex. sult of a fair consideration of the evidence 244, 24 S. W. 269; Railway Co. v. Hadnot, proper to be considered in arriving at this 67 Tex. 506, 4 S. W. 138; Kennedy v. Up- result. The second assignment of error canshaw, 66 Tex. 454, 1 S. W. 308; Head v. not be sustained. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; Ewing v. Goode (C. O.) 78 Fed. 442; Baker v. Richmond C. & M. Works, 105 Ga. 225, 31 S. E. 426; Hull v. St. Louis, 138 Mo. 618, 40 S. W. 89, 42 L. R. A. 753, and cases collected in note; Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455, 28 N. E. 486, 13 L. R. A. 499. This can only mean that the jury may in such case find the value upon their own judgment, provided there be enough in the evidence as to the character of the services to enable them to judge. This does not necessarily mean that such testimony is not admissible, but that it is not always essential. In the present case appellants offered no testimony as to the reasonable value of Olander's services, and cannot complain that the jury were left to make their own estimate from the facts before them. Burke v. Whiting, 19 Colo. 1, 34 Pac. 172. We do not think that there is anything in the nature of the services that would render their value a matter solely of expert knowledge. An examination of the authorities cited shows that many of them refer to services of professional men and those engaged in lines of business quite as much out of the line of the ordinary knowledge of jurors as in the pres-dence to support it and against the unconent case. The second proposition under this assignment presents the point that the amount awarded by the verdict as the reasonable value of Olander's services is excessive. Many elements entered into the value of the services. It cannot properly be said, as stated in appellants' brief, that Olander devoted only one day to this matter. So far as the mere element of time is to be considered, the evidence shows that a great deal more than one day was so employed. The evidence also discloses that the element of time cannot be considered, as appears from the great profit made by appellants, largely disproportionate to the time devoted by them to the transaction. The jury found that the profits were $54,500. If What has been said on this point renders any further discussion of the fourth assignment of error presenting the question unnecessary. The assignment must be overruled. By their fifth assignment of error, appellants complain that the finding of the jury that appellants bought the property from Nutt in order to defraud appellees out of what they claimed as profits is without evi tradicted evidence. This was the issue upon which the case largely turned, and to which most of the evidence in the record is devoted. If we take it as true, as found by the jury, that there was a contract, as set out in paragraph 3 of the petition, between appellants and appellees, there is enough in the uncontradicted evidence to authorize the finding that appellants did not act in good faith with Olander. Good faith required that he be advised of the contract of sale to Candlish. On the contrary, it was actively concealed from him. He was kept in ignorance of any intention to buy from Nutt. In fact, appellants proceeded upon the theory, negatived by the finding of the jury, that appellees had no rights in the matter at all, his contract or not, appellants' profits are at least the amount found. This disposes of all the assignments of error. What we have said in disposing of the first assignment of error and the propositions thereunder also disposes of the appellees' cross-assignment, which is overruled. Clearly, if appellees are entitled to recover upon quantum meruit the reasonable value of their services, they are not entitled to recover one-half of the profits under the express contract. ices except what they might choose to al- Under the view we take of the case, the remaining assignments of error present no grounds for reversing the judgment, if error was in fact committed, as contended by appellants. We agree that there is a difference between the meaning of the term "profits" as stated in special issue No. 4 and of "gross profits" as found by the jury, but, in the absence of any evidence of expenses, "gross profits" are "profits,” or “net profits." There was no evidence from which the jury could have determined how much was to be deducted from gross profits, to find the profits, or net profits-no evidence of any expenses at all to be deducted. So in this case there would be no difference between profits and gross profits. Evidence was, indeed, offered by appellants of the amount of bonus paid by them to procure the $10,000 cash to pay Nutt, but this was excluded by the court, and we think properly under the finding of the jury that the purchase from Nutt was for the purpose of defrauding appellees. They certainly could not be charged with an expense incurred for this purpose. Whether the evidence was sufficient to show that appellants made profits of $54,500 out of the transaction, or whether this finding is against the great weight and preponderance of the evidence, is immaterial. The judgment did not give appellees what they claimed as onehalf of these profits under the contract. We think, however, that the evidence abundantly shows that appellants' profits in the transaction were at least that much. They got the 11,000 acres of land at $7.50 per acre. It is worth at least $15 per acre. Candlish has paid them about $10,000 and has placed improvements on the land which cost him about $30,000. They have sold about 2,000 acres at an average price of about $14 per Whether Candlish ever complies with acre. We find no error requiring a reversal, and the judgment is affirmed. Affirmed. WILLIAMS et al. v. D. H. BELL & CO. PEALABLE. No appeal lies from a judgment which does not dispose of the entire case as to all the parties. [Ed. Note.-For other cases, see Appeal and 2. APPEAL AND ERROr (§ 79*)—Judgment APError, Cent. Dig. § 484; Dec. Dig. § 79.*] PEALABLE. Where, in an action against W. and R., W. pleaded over against R., a judgment for plaintiff against W. for the amount sued for, and for W. on his plea over against R., without disposing of plaintiff's claim against R., was not a final judgment and was not appealable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 487; Dec. Dig. § 79.*] Appeal from District Court, Haskell County; C. C. Higgins, Judge. Action by D. H. Bell & Co. against T. A. Williams and another, in which defendant T. A. Williams pleaded over against defendant Ed Rountree. From a judgment for plaintiff against defendant Williams and for the latter on his plea over against Rountree, defendants appeal. Dismissed. H. G. McConnell and C. W. Jackson, for appellants. Helton & Murchison, for appellee. PRESLER, J. This was an action brought by appellees to recover of appellants the sum of $1,049 alleged to be due appellees for services in procuring a purchaser in appellant Ed Rountree for land belonging to appellant T. A. Williams. Appellees alleged, in substance: That they were on the dates alleged in their petition real estate brokers and agents; that in September, 1907, they had listed with them by appellant Williams 560 acres of land, the sale of which is the subject of controversy in this suit; that, at the time said land was listed with them by appellant Williams, he (Williams) then and there agreed and promised to pay appellees the usual and customary commission of 5 per cent. on the gross proceeds of the sale of said land in the event they should secure a purchaser for same; |