author: YOUNG, Justice.

text:
    Robert THOMASON, Appellant, v. Doug FREBERG, Appellee.
    No. 1421.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Robert W. Dupuy, Corpus Christi, for appellant.
    Guy Leland Watts, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

The trial court denied relief in appellant’s action for bill of review and he appeals. Doug Freberg, appellee, sued Dr. Robert H. Thomason, appellant, on July 25, 1975, for labor and materials performed and furnished on Thomason’s ranch. Thomason answered, alleging among other things, that Freberg’s cause was barred by the statute of limitations. Trial to the court without a jury was begun on October 14, 1976. The trial was recessed then resumed on November 18, 1976, and concluded on March 4, 1977. The court then took the cause under advisement. Thereafter, on October 30, 1977, the court signed and ordered entered its judgment in favor of Freberg for $1,917.36. The judgment was not entered until February 1, 1978.

Prior to the rendition of judgment, the trial judge, on October 28, 1977, called Mr. Robert Dupuy, counsel for Thomason and informed him that the court had decided to grant judgment in favor of Freberg and against Thomason, and that he would probably render judgment sometime the following week. The trial judge informed Dupuy that he would have a copy of the judgment forwarded to him upon entry, thereof.

Dupuy filed a request fot findings of fact and conclusions of law on November 4, 1977. When he did not later receive a copy of the judgment, Dupuy telephoned the court coordinator on November 14, 1977, and asked whether the judgment had been entered. The court coordinator informed Dupuy that judgment had not been entered, and that the file of the case was still on the Judge’s desk.

On November 28,1977, Dupuy again queried the court coordinator by phone and again was informed that the judgment had not been entered. Later, on December 13, 1977, Dupuy requested an associate of his law firm to personally ask the court coordinator about the status of the case. The associate was informed that the judgment had not been entered. On the same day, Mr. Guy Watts, Freberg’s counsel, sent notice by letter to Dupuy that the trial judge had entered judgment on October 30, 1977.

Dupuy never received notice from the clerk of the court of entry of the judgment as required by Rule 306d, T.R.C.P. That rule reads as follows:

“Immediately upon the signing of any final judgment or other appealable order, the clerk of the court shall mail a postcard notice thereof to each party to the suit as provided in Rule 21a. Failure to comply with the provisions of this rule shall not affect the finality of the judgment or order.”

The parties stipulated that had Dupuy received proper notice, he would have appealed the judgment, but by the time he did receive notice, the appeal time had expired.

Consequently, Thomason filed this bill of review proceeding seeking to set aside the October 30,1977, judgment and to have the court render judgment that Freberg take nothing in his original suit. Thomason’s asserted grounds for the reversal and rendition contended that Freberg’s cause of action was barred by the two year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), and that as a matter of law, Thoma-son was not liable to pay Freberg because Thomason’s deceased wife, Dr. Elizabeth Thomason, had contracted for the services, and not Dr. Robert Thomason. He further asserted that the trial court failed to credit $500.00 against monies owed by Thomason to Freberg, and that attorneys fees should not be allowed because no liability could be shown.

The bill of review hearing was held on May 26, 1978, before the trial judge who decided the previous cause. The judgment in the bill of review proceeding states that evidence other than stipulations was heard, but the record does not reflect any other evidence. Appellant’s brief, however, specifies that all of the evidence introduced below consisted of stipulations, together with the statement of facts, exhibits, and transcript from the previous cause. And, since this statement is unchallenged by the appel-lee, we will accept it as true. Rule 419, T.R.C.P.

On August 4,1978, the trial judge signed a judgment denying the bill of review. The trial court filed findings of fact and conclusions of law which stated that the previously stipulated facts were true and also that the reason for Dupuy’s failure to file a motion for new trial or to perfect an appeal in the previous cause was the “information received by Thomason’s counsel from the court coordinator or the court clerk.” The court also found as a fact that Dupuy was diligent in trying to determine whether judgment had been entered in the prior suit. The court then concluded: “Robert Thomason would be entitled to the relief prayed for in this cause except that it is the opinion of this court that the judgment entered in (the previous cause) on October 30, 1977, was a correct judgment.” The trial court filed no findings of fact or conclusions of law dealing with the merits of the defenses asserted by Dr. Thomason.

At the outset, we note that this is not the usual type of bill of review proceeding. Most bill of review proceedings follow the rendition of a default judgment. In this case, however, the original suit had been tried on its merits. We are, therefore, placed in the similar situation presented by the appeal in Petro-Chemical Transport Co., Inc. v. Carroll, 514 S.W.2d 240 (Tex.Sup.1974).

In Petro-Chemical, the Court reviewed the general rule that the party moving for a bill of review must allege and prove: 1) a meritorious defense to the cause of action alleged to support the judgment, 2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party, 3) unmixed with any fault or negligence of his own. Accord, Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.Sup.1979). The Court then stated on page 244 that the above three-part test “does not govern the disposition of all bill of review cases.” In this connection, according to Pe-tro-Chemical, one seeking a bill of review need not prove the second element above when the clerk fails to send the Rule 306d notice.

The parties to this case stipulated that no Rule 306d notice was “received.” Petro-Chemical stated that a bill of review may be predicated upon the clerk’s failure to “send” the notice required by Rule 306d. As can be seen, the parties did not utilize the failure to “send” language used in Pe-tro-Chemical. Where the parties agree that a certain form of notice has not been received, there is a presumption that the notice was not mailed, and where there is no evidence to the contrary, the fact finder must find the absence of the mailing. See Sudduth v. Commonwealth County Mutual Ins. Co., 454 S.W.2d 196 (Tex.Sup.1970). Because there is no evidence to the contrary in the record here, it can be properly inferred that the clerk did not “send” the proper notice to appellant and that the second requirement of Petro-Chemical is thereby met.

Having established the second part of the three-part test above, Thomason was only required to show elements 1 and 3 above. As to element number 3, asking whether Dupuy was diligent, the trial court found the Dupuy was, in fact, diligent in trying to discover the entry of the judgment.

At this juncture, appellee Freberg contends that appellant’s points of error need not be considered and the judgment denying the bill of review should be affirmed because, as we interpret his argument, Thomason showed no evidence to support the trial court’s finding of diligence on element 3 above. In other words, he argues that the evidence shows that Dupuy was negligent as a matter of law. To support this argument, Freberg submits that, taken together, the following acts show negligence as a matter of law: 1) the judge’s oral notice to Dupuy that the judgment would be entered the following week; 2) Dupuy’s failure to call for 17 days after his notification by the trial judge (outside the time for filing a motion for new trial under Rule 329b(l), T.R.C.P.); 3) Dupuy’s failure to call the clerk or the judge at any time; and 4) Dupuy’s reliance on the court coordinator whose official duty was not to apprise litigants of the status of pending litigation but only to administer the court’s docket. We do not agree with Freberg’s argument.

In Petro-Chemical, counsel for the party moving for a bill of review was similarly apprised by the trial judge, before actually signing the judgment, that he would be rendering judgment for the plaintiff. Plaintiff’s counsel then sent a copy of a proposed judgment to defendant’s counsel, who responded by sending the judge and opposing counsel objections to the form of judgment after the date the judgment was signed and entered. Neither the trial judge nor opposing counsel responded to the belated objections to the form of the previously rendered judgment. Defendant’s counsel, furthermore, never contacted the court clerk whose official duty was to apprise litigants of the status of pending litigation. Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.Sup.1964); Kelly Moore Paint Co. v. Northeast National Bank, 426 S.W.2d 591 (Tex.Civ.App. — Fort Worth 1968, no writ). Seventeen days after the judgment was signed, defendant’s counsel called the trial judge, who, because of a busy schedule, had only a hazy recollection of defendant’s case. The judge told defendant’s counsel he had received the defendant’s objections, to the form of judgment and would give the defendant a chance to present them. Defendant’s counsel later discovered the earlier entry of judgment and filed a bill of review.

The trial court in Petro-Chemical granted the defendant’s bill of review after a jury trial. The Court of Civil Appeals reversed, holding that defendant’s failure, among other things, to contact the clerk, who had the official duty to apprise him of the status of the case, his failure to call the trial judge until after the ten day period for filing a motion for new trial, and his misplaced reliance on the trial judge’s statements showed lack of diligence. Further, it stated that the opposing counsel had no duty to notify defendant of the entry of judgment. In essence, the Court of Civil Appeals stated that in order to show diligence, a party must have relied on the statements of a court official who has an official duty to make those statements. Carroll v. Petro-Chemical Transport, Inc., 502 S.W.2d 871 (Tex.Civ.App. — Beaumont 1973) rev’d, 514 S.W.2d 240, 243 (Tex.Sup.1974).

The Supreme Court disagreed and stated that some evidence of diligence had been shown. See Rule 329b(5), T.R.C.P.; see also Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 636 (Tex.Sup.1974).

We know of no official duty that a trial judge has to apprise litigants of the entry of judgment. The traditional rule has been that once a trial court properly gains jurisdiction over a party, that party is expected to keep himself informed of the proceedings and judgment rendered in the case. Pentikis v. Texas Electric Service Co., 470 S.W.2d 387, 390 (Tex.Civ.App.— Fort Worth 1971, writ ref’d n. r. e.). See also Plains Growers, Inc. v. Jordan, supra; Jordan v. Corley, 42 Tex. 284, 286 (1875). Rule 306d, T.R.C.P., was enacted to require the clerk to give notice to all parties of the signing of the judgments. Furthermore, it is clear that opposing counsel has no official duty to apprise opposing counsel of the entry of a judgment. See Banks v. Crawford, 330 S.W.2d 243 (Tex.Civ.App. — Houston 1959, writ ref’d, n. r. e.). In light of the fact that the Supreme Court took such nonofficial actions into account in determining the diligence of the parties in Petro-Chemical, the movant’s inquiries and correspondence may be taken into consideration, under proper circumstances, when determining the movant’s diligence, even though the inquiries are not directed to one whose official duty it is to disseminate that information.

In keeping with this rule, the inquiry traditionally used to determine whether a party has been diligent is whether the litigant and his counsel used such care as prudent and careful men would ordinarily use in their own cases of equal importance. 4 McDonald Texas Civil Practice sec. 18.27.5 (1971). This issue is for the finder of fact. Lyons v. Paul, 321 S.W.2d 944, 950 (Tex.Civ.App. — Waco 1958, writ ref’d, n. r. e.).

In the instant case there is evidence that the trial judge told Dupuy that he would send him notice of the entry of judgment, but the judge failed to do so. In addition, Dupuy contacted the court coordinator several times in order to determine whether the judgment had been entered. We cannot say that Dupuy⅛ reliance and actions were lacking prudence. Freberg argues, however, that Dupuy could not rely on the court coordinator because it is not the coordinator’s official duty to apprise parties of the status of the case. In keeping with the Supreme Court’s decision in Petro-Chemieal, we find, however, that Du-puy’s contact and reliance on the court coordinator constitutes some evidence of diligence. We by no means find, though, that contacting the court coordinator is the best or most appropriate way for counsel to apprise himself of the status of litigation. Accordingly, we find that there is some evidence to support the trial court’s finding that Dupuy was diligent in attempting to discover the entry of the judgment.

Having found no error in the trial court’s findings that met requirements 2 and 3, as set out in Petro-Chemieal, we next consider whether a meritorious defense (requirement 1) was presented. In this connection appellant contends, and we agree, that since he lost the benefit of a motion for new trial and/or appeal in the previous cause, that his burden at the bill of review hearing regarding a meritorious defense was to introduce the statement of facts, exhibits and transcript from the prior suit and point out errors which would have justified a reversal in the prior suit had the movant had an opportunity to file a motion for new trial and/or a direct appeal. Petro-Chemical Transport Co., Inc. v. Carroll, supra 514 S.W.2d at 245-46. Because the trial court found that there was no error in its previous decision, we must review the statement of facts, exhibits and transcript to see if the trial court erred in it conclusion.

The statement of facts, exhibits and transcript indicate the following facts concerning this case. Sometime in the latter part of 1972, Dr. Robert Thomason and Dr. Elizabeth Thomason, husband and wife, entered into a contract with a Sears department store, represented by Freberg, to construct fences on their ’ homestead ranch. The Sears contract was concluded sometime in the.first part of 1973. Upon completing the Sears contract, the Thomasons paid Freberg $500.00 for that work.

Soon thereafter, Dr. Elizabeth told Fre-berg that she would be interested in having him perform additional tasks on the Thoma-son homestead. The evidence then becomes conflicting about the origin of the transaction Freberg contends that at sometime later, during the early part of 1973, he met with both Dr. Elizabeth and Dr. Robert and orally agreed with both to build water troughs, lay pipe, fix gates, and work on expanding a loading chute. We have no direct evidence of any other terms of the alleged agreement between Dr. Robert and Freberg. There is evidence in the record that Dr. Elizabeth agreed with Freberg that his payment would be the cost of his labor and materials plus ten percent. There is also a written contract between Dr. Elizabeth and Freberg signed May 13, 1973, which covers various tasks not involved in this suit except for the building of water troughs and the laying of pipe. The contract merely provides that $3000.00 would be paid for tasks agreed to and does not give any terms as to time of payment or time of completion. It was Freberg’s testimony that this written agreement with Dr. Elizabeth was entered into about one month after all of the work, made the basis of this suit, was initiated. Dr. Robert, appellant, contends he never made any agreements with Freberg.

According to Freberg, his crews worked on the Thomason homestead off and on during April, May, June, and July of 1973. The work, which normally would not take this long to perform, was delayed because of extremely wet conditions caused by excessive amounts of rainfall.

Dr. Elizabeth died on July 24, 1973. Apparently Freberg last worked on the Thom-ason homestead on July 25,1973. Thereafter, though, he was unable to perform any work on the Thomason homestead because he was not permitted onto the premises. The evidence is undisputed that the tasks made the basis of this suit were uncompleted as of July 25,1973. At some time after Dr. Elizabeth’s death, Dr. Robert hired other workmen to finish the job which Freberg had initiated, and at trial admitted that he now uses the water troughs, water lines, and gates that Freberg worked upon. Dr. Robert also admitted that he has used the loading chute and holding pen that Freberg serviced.

Later, Freberg asked Dr. Robert to pay him for his materials and services. Dr. Robert refused and this suit followed. Dr. Elizabeth’s estate is not involved in this suit.

Appellant, Dr. Robert, brings four points of error. His first point contends that Freberg’s cause of action was barred by limitations as a matter of law. We disagree.

Tex.Rev.Stat.Ann. art. 5526(4) (1958), provides:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
******
4. Actions for debt where the indebtedness is not evidenced by a contract in writing.”

The issue to be resolved in this point of error is whether Freberg’s cause of action on his implied contract accrued prior to July 25,1973 (two years before the filing of this suit). In that regard, the accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another, a cause of action has accrued. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 721 (1945); Godde v. Wood, 509 S.W.2d 435, 441 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d, n. r. e.).

Appellant, Dr. Robert, urges that the cause of action accrued after each day of service to the ranch such that only those services performed on July 25, 1973, would not be barred by limitations. He cites Scott v. Walker, 141 Tex. 718, 170 S.W.2d 718 (1943), City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776 (1942), and other cases for the proposition that where a party sues in quantum meruit, the cause accrues after the furnishing of labor and materials each day. While this interpretation may apply in some circumstances, it is inapplicable to the facts of this case. The clear holding of both Scott and Finn is that when a party is basing its actions solely on an implied contract, the cause accrues from the time services are performed, rendered, and received.

In Scott, the plaintiff was suing in quantum meruit for housekeeping services rendered over a period of many years without an oral contract or written contract. There, the court held that, without a showing that a contract was entered setting the obligor’s payment for housekeeping services at his death, limitations had been running and no recovery could be allowed except for services performed during the two years prior to the filing of the suit. The court then stated that, had an oral contract been entered to give payment to the obligee upon the obligor’s death, that the cause would not have accrued until the obligor’s death. See also Annot., 7 A.L.R.2d 198 (1949).

In Finn, the court stated that an architect’s cause of action in quantum meruit accrues at the time he delivers all his services, plans, sketches, and specifications to his customer. It is undisputed in the instant case that Freberg, through no fault of his, was unable to deliver completed services to Dr. Robert. Consequently, limitations should not have run until sometime after July 25, 1973. Compare Larry R. George Sales Co. v. Cool Attic Corp., 587 F.2d 266, 276 (5th Cir. 1979).

The court in Scott v. Walker, supra, stated that, for purposes of recovering on an implied contract, the existence of an express contract is important for determining the period of limitations. In the instant case, there is some evidence that Freberg entered into an oral contract with Dr. Robert and Dr. Elizabeth to perform various tasks on their homestead, but there is no direct evidence of any terms for the time of payment or completion. However, these were not the type of tasks which could continue indefinitely such as the housekeeping services in Scott, but rather were tasks with a specific goal. Moreover, the evidence is clear that the tasks contemplated by the parties were not long term in nature but under proper conditions could be started and completed in a relatively brief period of time. Furthermore, these services were not of such a nature that a court would imply a condition of payment at periodic intervals such that limitations would begin to run after, for example, each week’s or each month’s work. See 66 Am.Jur.2d, Restitution and Implied Contracts, sec. 84, p. 1026 (1973). We find the oral contract here to be a continuing contract; i. e., the contract was to continue until Freberg had completed the improvements according to the directions of the Thomasons. Compare Godde v. Wood, supra, 509 S.W.2d on page 441:

“Where a claim for work, labor, or materials performed or furnished is the outgrowth of an entire contract for continuous work, labor or materials (until the work project has been completed), the claim will be treated and considered as an entire demand and limitations will not commence to run until the contract has been finished.”

In the instant case, Freberg was never allowed to deliver a finished product or service to Dr. Robert Thomason. Consequently, up to the date of July 25,1973, the day after Dr. Elizabeth died, Freberg’s cause of action against the Thomasons had not accrued, or in other words, limitations had not begun to run. Indeed, Freberg’s limitations did not begin to run until after he was first prevented from continuing his tasks. See Scott v. Walker, supra. To hold that Freberg’s cause of action accrued after each day’s work would unduly fragment the time of accrual for each of these indivisible tasks. Compare Jones v. Lewis, 11 Tex. 359 (1854); Caldwell v. Jones, 63 S.W.2d 761 (Tex.Civ.App. — Amarillo 1933, writ ref’d) (holding that an attorney’s cause for services rendered over a period of time accrued when his services had been completely performed); Annot., 99 A.L.R.2d 251, 253 (1965). Appellant’s point 1 is overruled.

Appellant’s point 3 contends that the trial court erred in denying the bill of review because the court in the previous cause should have found, in effect, that there was no evidence to support the recovery against appellant, Dr. Robert Thomason, when Dr. Elizabeth Thomason was the one who contracted for the improvements on the homestead.

Appellant places primary emphasis on the language in Freberg’s petition which states that the work was done at the “special instance and request of Dr. Elizabeth Thomason.” From this, appellant cites Woodard v. Southwest State, Inc., 384 S.W.2d 674 (Tex.Sup.1964), for the proposition that quantum meruit is not applicable where services were performed at the request of a third party (here Dr. Elizabeth), not the party benefiting from the services (here Dr. Robert). In Woodard, though, the court was demonstrating that quantum me-ruit would not apply because there was an express contract between the third party Svalberg and Southwest States and that an implied contract supportive of a claim in quantum meruit could not arise out of the mere acts of performance of the express contract. See Knebel v. Capital National Bank in Austin, 518 S.W.2d 795, 800 (Tex.Sup.1974). Also, in Woodard the parties sought to be charged for the services rendered had no contact with the plaintiff pri- or to contracting with Svalberg for the services. The mere receipt of benefit from another’s contract does not by itself create a right of action in quantum meruit. Compare Atkinson v. Jackson Bros., 259 S.W. 280, 285 (Tex.Civ.App. — 1924), modified in part on other grounds, 270 S.W. 848 (Tex.Comn.App.1925, holding approved).

In the Instant case there is, indeed, some evidence of Dr. Robert’s contact with Freberg from the beginning of the services performed on the Thomason homestead. In addition, there is some evidence of all the elements necessary to prove a case of quantum meruit in this case. As set out in Montes v. Naismith and Trevino Construction Co., 459 S.W.2d 691, 694 (Tex.Civ.App. —Corpus Christi 1970, writ ref’d, n. r. e.), in an action for quantum meruit, the plaintiff must show:

“1) Valuable services were rendered and materials furnished,
2) for the person sought to be charged,
3) which services and materials were accepted by the persons sought to be charged, used and enjoyed by him,
4) under such circumstances as reasonably notified the person[s] sought to be charged that the plaintiff, in performing such services was expecting to be paid by the person[s] sought to be charged.”

There appears to be no dispute that elements 1 and 3 above are established by the evidence. The record is clear that pipe, water troughs, labor, etc., were furnished and that Dr. Robert Thomason has used the water troughs, piping, gates and other work either as the defendant left them, or after further services were performed which made them useable. The issue then arises as to whether there is any evidence to support elements 2 and 4 above.

Dr. Robert, in effect, contends that Dr. Elizabeth was the only one involved in agreements with Freberg, and in this same connection, Dr. Robert contends that he was not notified nor did he expect to have to pay Freberg for these services. Dr. Robert claims his exclusion from the agreement process is evidenced by the written contract of May 13, 1973. Dr. Elizabeth was the only one who signed this agreement. It should be noted, though, that only two of the seven projects sued upon: i. e., the pipelines and the water troughs, were listed in the May 13 agreement. And, of those two, the evidence is conclusive that they were started and well underway prior to the signing of the May 13 contract.

The issue is raised, then, as to whether the services were rendered for Dr. Robert as well as Dr. Elizabeth and whether under these circumstances Dr. Robert was reasonably notified that Freberg would expect to charge him for the services rendered. The evidence is conflicting on this issue. Dr. Robert Thomason stated at trial that his wife operated the ranch as her own business; that any agreement that Freberg would be paid was with his wife; and that he did not even know about Freberg until mid-April of 1973 although he did admit that he discussed the project with Freberg at this time. Dr. Robert also stated that he and his wife kept separate checking accounts and that she used hers for her separate business transactions. He claimed he only talked to Freberg twice; the first time about mid-April of 1973 when he claims he told Freberg where to lay a certain pipe and the second time after Dr. Elizabeth died, when he claims he told Fre-berg to consult with the executor of Dr. Elizabeth’s estate as to finishing the work because the contract was with her alone and he had nothing to do with it.

On the other hand, Freberg stated that the work involved in this suit began on March 17, 1973. He stated that Dr. Robert was fully aware that he was doing this work; that he had been to the Thomason home several times to talk with Dr. Robert and Dr. Elizabeth concerning the job; that Dr. Robert had helped him find buried water lines on several occasions; that Dr. Robert never personally told him to cease work and that Dr. Robert was made aware that he expected remuneration for his work. In addition, on pages 19 through 20 of the statement of facts, the following discourse took place at trial:

“Q. Mr. Freberg, very simply, in your role as an independent construction contractor, were you called upon to add improvements to the Thomason farm?
A. Yes, I was.
Q. In your role as a construction contractor, did not supervise the work done?
A. I personally supervised it, or had it supervised.
Q. Alright, was the work done according to your instructions and overall supervision?
A. According to my instructions and Dr. Thomason’s instructions.
Q. Are you talking about both Dr. Thomasons?
A. Both Dr. Robert and Dr. Elizabeth Thomason.”

Indeed, when asked whether Dr. Robert had allowed him to continue the work after Dr. Elizabeth Thomason’s death, Freberg stated: “I was not allowed to complete the work as set forth and agreed to with Dr. Elizabeth and Dr. Robert Thomason.” (Emphasis supplied).

When considering a no evidence point, as point 3 is, the court must review only that evidence favorable to the judgment of the trial court and disregard all evidence to the contrary. Garcia v. Prescott, 570 S.W.2d 562 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d, n. r. e.). In looking only to the evidence favorable to the judgment, one can easily conclude that both Dr. Robert and Dr. Elizabeth were reasonably notified that they would be expected to pay for either some or all of the improvements and that the improvements were being made for both of them. Consequently, we hold that Dr. Robert Thomason was liable to Freberg in quantum meruit for the value of the improvements.

Conversely, appellant argues that there is no pleading that Dr. Robert contracted with Freberg to do the work and, therefore, there can be no recovery in quantum meruit. The law is clear, though, that the right to recover in quantum meruit does not grow out of a contract, but is independent of it. The right to quantum meruit is based upon a promise implied by law for beneficial services rendered and knowingly accepted. Campbell v. Northwestern Nat. Life Ins. Co., 573 S.W.2d 496, 498 (Tex.Sup.1978).

Appellant further argues that there is no pleading or proof that Dr. Elizabeth was acting as agent for Dr. Robert in this situation. This point is not persuasive. There need not be actual agency on the part of one who helps procure material or labor for a defendant in an action on quantum meruit. Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (Tex.Comn.App.1941, opinion adopted); Electric Wire & Cable Co. v. Ray, 456 S.W.2d 260, 263 (Tex.Civ.App.—Houston (14th Dist.) 1970, writ ref’d, n. r. e.). Appellant’s point 3 is overruled.

Appellant’s point 2 contends that the judgment of the court should be reduced by $500.00 because the appellee judicially admitted in his pleading that he had received a $500.00 payment in connection with this construction. While we agree that appellee’s original pleading admits a $500.00 payment, we do not agree that the judgment must be reduced. The measure of damages in an action on quantum meruit ordinarily is the reasonable value of the work performed and the materials furnished. Houston Lumber Supply Co. v. Wockenfuss, 386 S.W.2d 330, 336 (Tex.Civ.App.—Houston 1965, writ ref’d, n. r. e.). Any reasonable offset would be deducted from this amount. In this case, though, no findings of fact or conclusions of law were filed concerning the reasonable value of the work performed and the materials furnished. The pleadings sought a recovery of $2788.10, minus the $500.00 already paid. The trial court granted a judgment for $1317.36, without explaining what the amount represented (plus $600.00 attorney’s fees). At this juncture, we can only look to see whether there is any evidence to support a finding of $1817.36 as the reasonable value of the work performed and the materials furnished, from which the $500.00 could be subtracted to arrive at the $1317.36 figure. After considering the evidence, we find some evidence which would support the finding of $1817.36 discussed above. Consequently, appellant’s point 2 presents no reversible error and is overruled.

Appellant’s point 4, being the last point, in essence contends that the award of $600.00 as attorney’s fees cannot be granted if we find no recovery is justified. See Tex.Rev.Civ.Stat.Ann. art. 2226 (1971), Gulf Coast Operators, Inc. v. Fleming Oil Company, 393 S.W.2d 954, 958 (Tex.Civ.App.— Houston 1965, no writ). Having overruled appellant’s points 1, 2, and 3, we must also overrule this point 4.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    Bud NORMAN, et al. v. HENRY HYDROCARBON, INC.
    No. 5351.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 13, 1979.
    Virgil T. Seaberry, Eastland, for appellant.
    E. Lee Haag, III, Whitten & Sprain, Abilene, for appellee.
   DICKENSON, Justice.

Henry Hydrocarbon, Inc. secured a temporary injunction on April 19, 1979, against Bud Norman, Mrs. Aliene Allen Norman, Alton C. Allen, W. M. Allen, Joe B. Scott, Cecelia Scott and Hall Walker which restrained them from interfering with its access to a certain tract of land for the purpose of drilling an oil well. All of the defendants except Hall Walker appealed, but the temporary injunction was not superseded. Henry Hydrocarbon proceeded to drill its well. The well did not produce oil or gas in commercial quantities. Henry Hydrocarbon then filed its motion to dismiss the appeal and dissolve the temporary injunction because the matter had become moot. Its claim for damages is still pending in the trial court, as is the cross-action filed by Joe B. Scott and Cecelia Scott against Henry Hydrocarbon.

Chief Justice Hickman stated the applicable rules in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952), as follows:

(W)hen a case becomes moot on appeal, all previous orders are set aside by the appellate court, and the case is dismissed. . . When the appeal is from an order granting a temporary injunction, and that phase of the case becomes moot on appeal, the same rule applies. The proper order is to set aside all orders pertaining to the temporary injunction and dismiss that portion of the case, leaving the main case still pending.

See also Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725 (1958).

The temporary injunction is set aside, and that portion of the case is dismissed as moot. The other causes of action are still pending in the trial court. The costs of this interlocutory appeal are to be taxed as part of the court costs when the main case is concluded. Tex.R.Civ.P. 448.


author: KEITH, Justice.

text:
    CENTRAL FREIGHT LINES et al., Appellants, v. Raymond W. PRIDE, Appellee.
    No. 8381.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 20, 1979.
    Rehearing Denied Oct. 18, 1979.

      Lipscomb Norvell, Jr., S. C. Barkley, Beaumont, John 0. Kain, Houston, Louis M. Scofield, Beaumont, James R. Roos, Houston, for appellants.
    Ronald D. Krist, Richard R. Morrison, III, Houston, for appellee.
   KEITH, Justice.

Defendants below appeal from an adverse judgment entered in a personal injury action arising out of a collision of two vehicles.

Statement of the Case

During the afternoon of September 9, 1977, while driving in a hard rain, a truck owned by Central Freight Lines and operated by Kenneth Wilburn (hereinafter collectively “Central”) collided with a vehicle driven by plaintiff. The accident happened upon State Highway 73 at or near the western city limits of the City of Port Arthur. At that point the highway is a straight two-lane road and Central was proceeding easterly while plaintiff was proceeding in a westerly direction. According to each driver, he was going about 35-40 miles per hour.

As Central approached a bridge over a small bayou, the truck-trailer suddenly jackknifed, crossed to the northern side of the road, crushed plaintiff’s car, and the tractor tore down the guardrail on the northern side of the bridge over the bayou. When stopped, the trailer completely blocked the westerly lane of the road. Plaintiff’s vehicle was destroyed and he sustained severe injuries.

B & B Auto Supply, Sand Pit, and Trucking Company (hereinafter “B & B”) operated a dirt pit alongside the highway near the bridge. Trucks loaded with dirt coming from the dirt pit had deposited large chunks of clay, dirt, and debris on the roadway and B & B had undertaken to clean up the material so deposited on the road. Notwithstanding such efforts, there was a considerable amount of material on the roadway at the time of the accident rendering the highway extremely slick. Central’s driver blamed the loss of control on the slickness of the roadway caused by B & B’s acts and omissions.

Plaintiff sought judgment against Central and B & B, jointly and severally. Each sought indemnity and contribution from the other and B & B interpleaded as third-party defendants the owners of the trucks which had actually deposited the mud, etc., on the roadway. At the trial, Coy Burroughs, the chief executive and dominant stockholder of B & B, testified unequivocally that the cleanup operations were the responsibility of B & B, that none of the truck operators had any responsibility therefor; and that he had undertaken to conduct the cleanup operations before the collision.

At the conclusion of the evidence, plaintiff nonsuited the truck owners and the Court granted a peremptory instruction in their favor as to the claims over and against them by B & B. The jury found Central and B & B guilty of negligence proximately causing the collision, exonerated plaintiff of any contributory negligence, and affixed the ratio of negligence as to the two defendants in the proportion of two-thirds against Central and one-third against B & B. No complaint is made as to the amount of damages awarded plaintiff.

Upon proper motion, the court entered judgment against both defendants, jointly and severally, and granted Central complete indemnity against B & B, denied B & B any relief as to the truck operators, and the two defendants have perfected their appeal. We affirm.

Central’s Appeal

Central has brought forward seven points of error, all of which challenge the findings that Central’s driver was guilty of negligence proximately causing the collision. The points include legal and factual sufficiency points as well as others contending that the jury findings are against the great weight and preponderance of the evidence. In passing upon these points, we will follow the usual rules laid out with admirable simplicity in the new publication Appellate Procedure in Texas (State Bar of Texas), Knapp, “The Appellant’s Brief”, § 14.4[4][a] and [b], at 306-307 (2d Ed. 1979), where the leading cases on the subject are cited.

In essence, Central’s contentions are all based upon the proposition that Wilburn’s testimony should have been accepted by the jury. It argues that he lost control of his truck-tractor only because of the negligence of B & B and that the jury was not authorized by any competent evidence in the record to disbelieve him.

The short answer to this argument is that Wilburn was a defendant and an interested witness. The most that his testimony did, under our record, was to raise a jury issue. His testimony did not establish, as a matter of law, the existence of the facts he gave to the jury. Central Freight Lines, Inc. v. Bergeron, 470 S.W.2d 117, 121 (Tex.Civ.App. — Beaumont 1971, writ ref’d n. r. e.), and cases therein cited. See also Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968).

All of Central’s points of error are overruled.

B & B’s Appeal as to Central

B & B has nine points of error directed at three facets of the judgment. In point one, it contends that the trial court erred in granting Central indemnity over and against it while the second point contends that it was error for the court not to award it contribution over and against Central. We will treat these points first.

Under our undisputed record, B & B owed a duty to both plaintiff and Central to remove the dirt and debris from the road so as to prevent a vehicle skidding because of the presence of the mud. One of the more recent expressions of the rule is to be found in General Motors Corp. v. Simmons, 558 S.W.2d 855, 859 (Tex.1977), wherein Justice Pope quoted at length from Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565 (1949), holding:

“Although both tortfeasors [Central and B & B] are liable to the injured plaintiff [Pride], the court said [in Pope], as between themselves the blameless should be allowed indemnity. The court then stated this rule: ‘In order to determine whether the loss should be shifted from one tortfeasor to another the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor.’ ”

Justice Folley in Pope, supra, cited as his sole authority for the holding, the seminal and authoritative discussion of Professor Gus Hodges, “Contribution and Indemnity Among Tortfeasors”, 26 Texas L.Rev. 150, 160-161 (1947). We apply this “imaginary lawsuit” test to the case at the bar.

In two venue appeals dealing with mud on highways, this court has found that plaintiffs established a prima facie cause of action against a defendant situated such as B & B in our case. See Kirby Lumber Corp. v. Yarbrough, 425 S.W.2d 709, 711 (Tex.Civ.App. — Beaumont 1968, no writ); and Kirby Lumber Corp. v. Walters, 277 S.W.2d 796, 799 (Tex.Civ.App. — Beaumont 1955, no writ). Indeed, our case is somewhat similar to Skelly Oil Co. v. Johnston, 151 S.W.2d 863, 867 (Tex.Civ.App. — Amarillo 1941, writ ref’d).

B & B recognizes the “imaginary lawsuit” test but argues that since the jury found Central’s negligence was responsible for two-thirds of plaintiff’s damage, while B & B’s negligence was responsible for only one-third thereof, Central would not have prevailed in a suit against it. In advancing this argument, B & B has confused its facts. There was no jury finding on the “imaginary lawsuit”.

As noted earlier, B & B undertook sole responsibility for the removal of the mud from the highway, and relieved the truckers hauling dirt from its pit of any responsibility therefor. B & B undertook the cleanup operation and thereby came within the rule enunciated most recently in Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976):

“[0]ne who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other’s person or property will not be injured thereby.”

In support of the text, the Court quoted from Restatement (Second), Torts, § 323 (1965).

B & B breached its duty to Central but Central breached no duty it owed to B & B. Thus, the rule distilled from a myriad of cases considered in Austin Road Company v. Evans, 499 S.W.2d 194, 200 (Tex.Civ.App. — Fort Worth 1973, writ ref’d n. r. e.), is applicable. We say, as did the court in Evans: “. . . Mrs. Evans having breached no duty to Austin Road Company is entitled to impose the ultimate liability to pay the amount of the McEneny and Carson damages upon the Austin Road Company.” See also City of Denton v. Mathes, 528 S.W.2d 625, 631 (Tex.Civ.App. — Fort Worth 1975, writ ref’d n. r. e.).

Dean Keeton, commenting upon Austin Road Co. v. Pope, supra, used this language in “Annual Survey of Texas Law, Torts”, 32 SW.L.J. 1, 13 (1978):

“That decision adopted instead a rule that if one co-tortfeasor breached duty owed only to the plaintiff, but the other breached a duty owed both to his co-tort-feasor and to the plaintiff, the latter tort-feasor had the obligation of indemnifying the former.”

Additionally, as held in Atchison, Topeka and Santa Fe Railway v. Smith, 563 S.W.2d 660, 668 (Tex.Civ.App. — Waco 1978, writ ref’d n. r. e.), B & B was liable to Central under the doctrine of common law indemnity as construed by several Supreme Court decisions cited in the opinion. B & B’s first two points are overruled.

Next, B & B argues that the evidence is legally and factually insufficient to support the jury’s findings in answer to Special Issues Nos. 4 and 5. Although the jury found that Central failed to keep its vehicle completely within its right side of the highway (No. 3), it refused to find that such was either negligence (No. 4), or a proximate cause of the collision (No. 5).

We will review the points under the standards set out earlier. And, having done so, we overrule points three, four, five and six for the reasons now to be stated.

B & B argues that Central was guilty of statutory negligence — negligence per se — in violating Tex.Rev.Civ.Stat.Ann. art. 6701d, §§ 52, 53 (1977), in failing to keep its vehicle upon the right hand side of the highway. It cites in support of its contention, language found in Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99, 102 (Tex.1977):

“The rule is also well settled in Texas that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation.”

We recognize the continuing vitality of the rule enunciated in L. M. B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973), and Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972). We do not, however, find the rule to be applicable in the case at bar.

The jury simply failed to answer the two questions now under consideration. See C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). The two issues were primary issues between plaintiff and Central and plaintiff makes no complaint as to the findings of the jury. Answers to the two issues — as between Central and B & B — are not material. Had both been answered adversely to Central, such answers could not have affected B & B’s liability to Central under the rationale of Colonial Savings Ass’n v. Taylor, supra (544 S.W.2d at 119). Points three, four, five, and six are overruled.

B & B’s Appeal as to the Truckers

Finally, by points of error seven, eight and nine, B & B contends that the trial court erred in granting the motion for peremptory instruction filed on behalf of the truckers who used the dirt pit and who may have cast the mud on the highway. As noted earlier, B & B’s officer and dominant stockholder testified to facts which destroyed B & B’s contentions. We reproduce this statement from Trucker Smith’s brief which, after reviewing the record, we find to be accurate;

“As noted earlier, B & B, through the testimony of its co-owner and officer, Mr. Coy Burroughs, admitted (repeatedly) its complete responsibility for cleaning any mud deposited on the highway; admitted that it was not the truck driver’s (including Smith) responsibility to clean the mud; admitted that the truck drivers rightfully relied upon B & B to clean the mud; and admitted that on the date of the accident, and prior to the accident, B & B actually undertook such cleaning, after the truck drivers (including Smith) had left the work site.
“B & B through its owner, Coy Burroughs, went on to expressly and unequivocally admit that the drivers (including Smith) acted as ‘reasonably prudent truck driver(s)’ in relying upon B & B to clean the roadway.”

These were judicial admissions and are conclusive and binding upon B & B. In Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458, 466 (Tex.1969), the Court disposed of a similar contention, saying:

“The testimonial declarations of a party are occasionally held to be equally conclusive on the theory that it would be absurd and manifestly unjust to allow a party to recover after he has clearly and unequivocally sworn himself out of court.”

Coy Burroughs swore his company, B & B, out of court insofar as his claim against the truckers is concerned. The present complaints are without merit and the last three points of error are overruled.

The judgment of the trial court is affirmed.

      . Assuming the truckers deposited the mud on the highway, Tex.Rev.Civ.Stat.Ann. art. 6701d, § 103(a) (1977), required the truckers to “immediately remove the same or cause it to be removed.”

      . The points of error challenge the action of the court as to James Gautreaux, Kirk Smith, and David Rodriguez. Only Smith has filed a brief; but, from our review of the record, the failure of Gautreaux and Rodriguez to file briefs is not material. Smith’s brief adequately answers B & B’s contentions addressed to the common questions.


author: HALL, Justice.

text:
    PARKS-DAVIS AUCTIONEERS, INC., et al., Appellants, v. T.O.K. COMPANY, INC., Appellee.
    No. 5946.
    Court of Civil Appeals of Texas, Waco.
    Sept. 28, 1979.
    Rehearing Denied Oct. 25, 1979.

      Herbert N. Lackshin and Bernus William Fischman, Lackshin & Nathan, Houston, Roy W. Hill, Fairfield, for appellants.
    Robert H. Smith and Jerry K. Sawyer, Sanders, Saunders, Brian, Finney & Thomas, Amarillo, for appellee.
   HALL, Justice.

Plaintiff-appellee T.O.K., Inc., and defendant-appellant Parks-Davis Auctioneers, Inc., executed a written contract dated November 30,1974, and an amendment thereto dated September 30, 1975, for the excavation, removal and reconditioning of approximately 1,360,000 feet of an old petroleum products pipeline running through nine counties in east and central Texas. The line was composed of eight-inch and ten-inch steel pipe, except for a very small portion (40,000 feet) of six-inch steel pipe. It was located in an easement owned by Gulf Refining Company. Although the pipe in question was not in use, other lines in the easement were in use. The pipeline was originally constructed in the early 1900’s of 20-foot lengths of pipe joined together by threaded collars, a method of construction which is obsolete. Over the years of its use, sections of the pipeline in question had been replaced with lengths of pipe joined by welding, which is the present method of construction.

Parks-Davis and the other appellants (whom we shall later identify), acting together in a joint venture, purchased the pipe from Gulf with the intention of selling it for a profit after its removal and reconditioning. It is undisputed that Parks-Davis was acting for itself and the other appellants when it executed the contract and amendment in question.

The contract provided that T.O.K. would excavate the pipe and deliver it to storage yards located along the line; that Parks-Davis would “promptly thereafter” remove the pipe to its yard in the City of Houston; and that after the pipe was placed in the Houston yard, T.O.K. at its expense would clean, straighten, drift and tally the pipe. Prior to delivery to Parks-Davis, it was T.O.K.’s duty to “cut the pipe in approximate 40-foot lengths, using the rough cut or torch cut method, and as near as possible to cut only at the welds and to strap all pipe and cut at a minimum of two inches behind the collar.” T.O.K. also agreed to leave the pipeline right-of-way “in a clean, level and smooth condition,” “repair all fences and roads,” and “restore and leave the surface of the right-of-way in a condition acceptable to Parks-Davis, Gulf Refining Company, and the landowner.”

The original contract provided that Parks-Davis would pay T.O.K. “the sum of 58$ per foot for all pipe delivered to and accepted by Parks-Davis in compliance with the terms of this Agreement”; that T.O.K. would invoice Parks-Davis on or before the 5th day of each month “for all pipe delivered to and accepted by” Parks-Davis during the preceding month; and that Parks-Davis would make payment within ten days after receipt of the invoice. Under the terms of the amendment the parties agreed that by the 5th day of each month T.O.K. would bill Parks-Davis for work performed during the previous month “in accordance with the following schedule: a. 45$ per foot for pipe removed from the ground and ready for delivery to the Houston yard, b. 13$ per foot for pipe cleaned, straightened and drifted in the Houston yard”; and that Parks-Davis would pay the invoice by the 10th day of the month of billing. However, paragraph 17 of the contract provided that until the work was 75% completed Parks-Davis would retain 10% of the amount of each invoice; that upon completion of 75% of the work Parks-Davis would release one-half of the amount theretofore retained; that thereafter Parks-Davis would retain only 5% of each invoice; and within thirty days after receipt of an affidavit from T.O.K. “that all work has been completed under the terms of this agreement” Parks-Davis would pay T.O.K. the balance of the retained funds. Also, in paragraph 18 it was “specifically provided that if in the removal, delivery and reconditioning of said pipe any damage should occur to the pipe which is caused by T.O.K.⅛ acts of negligence, then Parks-Davis shall deduct from the payments otherwise due to T.O.K. an amount equal to 58$ per lineal foot for each joint of damaged pipe.” In paragraph 13, T.O.K. assumed the “entire responsibility” for the payment of losses, expenses, damages and claims arising out of any injury or alleged injury to person or property caused by it, and it agreed to indemnify Parks-Davis and hold it harmless from any and all such losses, expenses, damages and claims. The above provisions of paragraphs 13, 17 and 18 were not changed in the amendment.

The original contract provided that T.O.K. would commence work thereunder not later than the week of November 25, 1974; and that it would complete the work not later than June 20, 1975. The amendment recited that T.O.K. and Parks-Davis mutually agreed to cease operations under the contract from April 15, 1975, through October 6, 1975; that they “have now agreed to commence again the removal and reclamation operations” set forth in the original agreement; and that Parks-Davis agreed to pay T.O.K. $4,000.00 “for the start-up costs incurred in connection with the resumption of operations.” It was provided in paragraph 4 of the amendment that T.O.K. would commence operations “as soon as possible; however, it will not do so until Gulf Refining Company has provided an inspector to be on the job site at the commencement of and during the conduct of T.O.K.’s operations.” Paragraphs 5 and 8 set forth these terms:

“5. T.O.K. agrees to remove any and all of the remaining pipe in the ground which was the subject of the original Pipeline Removal Agreement, including pipe which was skipped over and not taken up previously, except where weather conditions make the right-of-way impassable and such removal is impractical [and except pipe through the City of Lufkin which will be negotiated later by the parties].
“8. Except as amended herein, the Pipeline Removal Agreement, dated November 25, 1974, is in full force and effect, and such Agreement is hereby ratified, confirmed and approved by the parties. It is further understood and agreed that the parties have not waived and do not hereby waive any default by the other party in complying with the terms of said original Agreement.”

The amendment did not set forth a new date for completion of the work under the contract.

This suit was filed by T.O.K. against Parks-Davis on April 15, 1976. T.O.K. pleaded the contract and the amendment, and alleged that until March 11,1976, it had fully performed under the contract and was prepared to continue to perform until all work was completed, but that on that day it was forced to abandon and terminate any further work under the contract because Parks-Davis had materially breached the contract by failing and refusing to pay T.O.K. $32,591.58 for work performed during December, 1975, $6,361.10 for work performed during January, 1976, $43,496.98 for work performed in February, 1976, and $6,153.76 for work performed in March, 1976. T.O.K. prayed for recovery of those amounts, totaling $88,603.42. T.O.K. also alleged that Parks-Davis had retained $33,-980.12 from past invoices, and that by reason of Parks-Davis’s breach of the contract T.O.K. was entitled to recover the retained funds, which, after demand, Parks-Davis refused to pay. Additionally, T.O.K. sought recovery of $3,714.70 as the reasonable value of extra work allegedly agreed upon by it and Parks-Davis, based upon an invoice for employees-overtime pay totaling $1,194.70, and an invoice for extra-depth ditch work totaling $2,520.00; and it sought recovery of consequential damages in the sum of $94,048.78 “representing the reasonable cost and expenses of machinery, equipment and labor,” and certain interest expense on borrowed money, all allegedly incurred by reason of asserted delays and “downtime” of its equipment and employees caused by Parks-Davis’s failure to meet its responsibilities under the contract, and the failure to pay T.O.K.⅛ invoices on time.

Parks-Davis answered T.O.K.⅛ suit with a general denial on May 24, 1976.

On January 12, 1977, Parks-Davis filed a third-party action against appellants H. Ro-sen Oil Company, Harvey Rosen individually, and Houston Pipe and Supply Company (hereinafter “Rosen defendants”), and alleged in effect that Parks-Davis executed the contract with T.O.K. on behalf of a joint venture known as P-D Pipe and Supply; that the Rosen defendants were the other members of the venture; that on March 26, 1976, the Rosen defendants purchased “all of Parks-Davis’s right, title and interest” in the joint venture; that in connection with the purchase the Rosen defendants agreed in writing that they would indemnify Parks-Davis against any and all damages and claims including attorney’s fees resulting from the venture, including those resulting from the contract with T.O.K. Parks-Davis prayed for judgment against the Rosen defendants for any recovery against it by T.O.K.

Thereafter, the Rosen defendants filed their original counterclaim against T.O.K. in which they pleaded the pipeline removal contract and its amendment between Parks-Davis and T.O.K., and alleged that Parks-Davis was acting for itself and also for them in the execution of those instruments. They then asserted that T.O.K. had deliberately refused to discharge its obligations under the contract, detailed numerous breaches allegedly committed by T.O.K., and sought damages for the breaches totaling $959,324.00. T.O.K. answered the counterclaim, and also filed its first amended original petition against the Rosen defendants and Parks-Davis in which it restated the claims set forth in its original petition. Eventually, the Rosen defendants filed their second amended answer containing a general denial and several special denials of T.O.K.⅛ suit, and their second amended counterclaim against T.O.K. The Rosen defendants specially denied the performance of work alleged by T.O.K. during the months of December, 1975, January, 1976, February, 1976, and March, 1976; specially denied that T.O.K. was entitled to recover the retained funds, and affirmatively alleged as grounds for continued retention of the funds that T.O.K. had not completed 75% of the work; specially denied T.O.K.’s pleadings for extra work, but admitted that it agreed to pay the cost of the extra-depth ditch work totaling $2,520.00; and specially denied that they hampered and delayed T.O.K.’s operations under the contract, and denied that T.O.K. had been damaged in the amount of $94,048.78 by reason thereof. In the second amended counterclaim, the Ro-sen defendants again alleged numerous breaches of contract by T.O.K., and pleaded for damages therefor totaling $515,350.44. Among their claims for damages were allegations (1) that T.O.K. caused 52,122 feet of pipe to be broken or cut into 20-foot lengths instead of 40-foot lengths “as required by the Agreement,” entitling the Rosen defendants under the contract to an amount equal to 58$ per lineal foot of the damaged pipe totaling $30,230.00; and (2) that T.O.K. had failed to indemnify the Rosen defendants for losses, expenses, damages and claims paid by them for damages to property in the sum of $152,381.44, resulting from T.O.K.⅛ failure to leave the right-of-way in a clean, level and smooth condition, repair all fences and roads, remove all debris from the righb-of-way, and restore the surface of the right-of-way to a condition acceptable to the Rosen defendants, Gulf Refining Company, and the landowners.

The case was tried to a jury in November, 1977. Prior to the trial, an interlocutory judgment was rendered awarding Parks-Davis judgment against the Rosen defendants jointly and severally for the amount of any judgment obtained by T.O.K. against Parks-Davis. This judgment was based upon the stipulation and motion of those parties growing out of the indemnity agreement between them. Also, during the course of the trial Parks-Davis and the Ro-sen defendants (hereinafter, collectively, “defendants”) stipulated that they had retained funds from T.O.K.’s invoices in the sum of $33,980.12 (the amount pleaded by T.O.K.) which had not been paid to T.O.K.

It was undisputed on the trial that it was T.O.K.’s duty under the contract to deliver the pipe to the storage yards along the right-of-way and there load defendants’ trucks for delivery to the Houston yard; that it was defendants’ duty to promptly remove the pipe from the right-of-way yards to the Houston yard and there load it onto racks for immediate accessibility to T.O.K. for cleaning and straightening. The record also establishes that it was defendants’ responsibility to deal with landowners along the right-of-way easement ahead of T.O.K.’s operation and thereby arrange to have the right-of-way open for T.O.K.’s entry for removal of the pipe, but that the payment of the landowners’ claims and damages was T.O.K.’s responsibility under the contract. Additionally, T.O.K. asserted on the trial (1) that the time of resumption of removal of pipe after the cessation in April, 1975, was strictly within its discretion; and (2) that defendants had misrepresented the depth of certain parts of the pipeline prior to execution of the original contract, thereby causing T.O.K. extra removal expense. Defendants denied both of those contentions.

T.O.K.’s pleadings for extra work damages totaling $3,714.70 were based upon two invoices which were numbered PX14 and PX15 on the trial; and its pleadings for consequential damages totaling $94,048.78 allegedly resulting from “downtime” of equipment and employees and interest paid on borrowed money, all caused by defendants’ delays, were based upon eight invoices which were exhibits PX16 through PX23 on the trial. The invoices were for the following items and amounts:

PNhihit. Item Amount
PX14 Employees’ overtime pay for Sunday work loading $ 1,194.70 defendants’ trucks at the right-of-way yards during January, February, and March, 1975.
PX15 Extra-depth ditch work. —2,520,00
TOTAL EXTRA WORK DAMAGES: $ 3,714.70
PX16 Expenses for moving equipment, and waiting time $ 631.00 wages, when portion of right-of-way not open.
Exhibit Item Amount
PX17 Downtime expenses for rented equipment and its op- 10,000.00 erating personnel when right-of-way not open.
PX18 Interest paid by plaintiff on money borrowed by it 1,552.78 for operating expenses because of late payments by defendants on invoices.
PX19 Downtime wages at the Houston yard when pipe not 5,000.00 racked by defendants.
PX20 Downtime rental expense for pipe cleaning machine 7,000.00 at Houston yard when pipe not racked by defendants.
PX21 Downtime rental of a parking lot for equipment 400.00 during cessation of work in summer of 1975.
PX22 Downtime expenses for T.O.K.’s equipment and its 65,000.00 employees’ wages from August 4,1975, to October 1, 1975.
PX23 Downtime rental expense for miscellaneous equip- 4,465.00 ment at the Houston yard from September 11,1975, to October 1, 1975, when pipe not racked by defendants.
TOTAL CONSEQUENTIAL DAMAGES: $94,048.78

The case was submitted to the jury on 37 special issues. The following answers by the jury are pertinent to the questions raised by the parties on this appeal:

Nos. 1, 2, 3, and 4: Found that prior to the execution of the original contract defendants misrepresented the depths of pipe to T.O.K., but failed to find that the misrepresentations were material to T.O.K.’s execution of the contract.
Nos. 14A and 15A: Found defendants failed to pay T.O.K. $32,591.58 “for work performed by T.O.K. during the month of December, 1975.”
Nos. 14B and 15B: Found that defendants failed to pay T.O.K. $6,361.10 “for work performed by T.O.K. during the month of January, 1976.”
Nos. 14C and 15C: Found that defendants failed to pay T.O.K. $43,496.93 “for work performed by T.O.K. during the month of February, 1976.”
Nos. 14D and 15D: Found that defendants failed to pay T.O.K. $6,153.76 “for work performed by T.O.K. during the month of March, 1976.”
No. 16: Found that defendants agreed to pay T.O.K. a reasonable sum for all extra work performed, and “reasonable interest for late payments.”
No. 17: Found that defendants failed to pay T.O.K. for the extra work performed and reasonable interest for late payments.
No. 18: Found that $25,243.48 would reasonably compensate T.O.K. for the extra work and for reasonable interest.
Nos. 19A, 19B, 19C, 20A, 20B, and 20C: Found that defendants (19A) failed to provide T.O.K. “timely access to a portion of the right-of-way so that T.O.K. could remove some of the pipe in question,” (19B) failed to “supply sufficient equipment to keep the racks loaded and unloaded at the Houston yard,” and (19C) failed to “supply sufficient transportation of pipe from the pipeline to the Houston yard”; and (20A, 20B, and 20C) that T.O.K. “was damaged as a proximate result” of each of those failures.
No. 21: Answered “O” to the question asking what sum of money would reasonably compensate T.O.K. for the damages found in the answers to special issues 20A, 20B, and 20C.
No. 22: Failed to find that the decision regarding the time for resumption of the work following the mutual cessation of work in April, 1975, was to rest exclusively with T.O.K.
No. 26: Failed to find that T.O.K. “breached its obligations under the contract by failing to clean, straighten and drift pipe removed from the ground.”
No. 28: Failed to find that T.O.K. “breached its obligations under the contract by failing to remove pipe from the ground in the months of January, 1976, February, 1976, and March, 1976.”
No. 32: Found that the Rosen defendants “paid for losses, expenses, damages, demands and claims in connection with and arising out of injury to person or damages to property sustained in connection with or arising out of the removal of pipe.”
No. 33: Found that $76,171.00 would “fairly and reasonably indemnify” the Rosen defendants for the damages and claims found to have been paid by them in the answer to special issue 32.
No. 34: Found that T.O.K. failed to cut 64,500 feet of pipe “into approximately 40-foot lengths.”
No. 35: Found that the defendants are entitled to a credit of $14,965.02, as the result of T.O.K.’s “failure to cut pipe into lengths of approximately 40 feet.”
No. 36: Made the following answers to the question asking whether defendants “agreed with T.O.K. to pay a reasonable sum for those matters and items made the subject of the following invoices submitted by T.O.K.”:
A. PX14?
ANSWER: “We do” or “We do not”
ANSWER: We Do_
B. PX15?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
C. PX16?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
D. PX17?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
E. PX18?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
P. PX19?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
G. PX20?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
H. PX21?
ANSWER: “We do” or “We do not”
ANSWER: We Do_
I. PX22?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
J. PX23?
ANSWER: “We do” or “We do not”
ANSWER: We Do Not_
No. 37: Failed to find that T.O.K. “waived the obligation” of defendants “under any such agreement [found in answer to special issue 36].”

T.O.K. filed a motion for judgment on the verdict in which it asked the court to either disregard the jury’s answer to special issue 21 or, alternatively, to reconcile the jury’s answers to special issues 16, 17, 18, 19, 20, and 36, by determining that the jury’s award of $25,243.28 in the answer to special issue 18 (which inquired about damages for extra work and interest on late payments) was intended by the jurors to include and did include an award by them for damages allowed T.O.K. not only for extra work but also for the consequential damages found by the jury in answers to special issues 19 and 20. In support of the motion T.O.K. argued that although in answers to special issue 36 the jury found that defendants had not agreed to pay most of the items claimed by T.O.K. as consequential damages, such damages are not required to be based upon a separate agreement to pay if they resulted from breaches of defendants’ duties under the contract; and that the only reasonable and logical explanation for the answer to special issue 18 must be that the jury included therein all damages they wished to award T.O.K. for both extra work and consequential damages flowing from defendants’ failure to comply with their duties under the contract as found in the answers to special issues 19 and 20.

Defendants also filed a motion for judgment and for judgment notwithstanding the verdict in which they asserted among other contentions that the maximum amount T.O.K. may recover under special issue 18, the extra work and interest issue, is the sum of $3,714.70 pleaded for and proved (PX14 and PX15) by T.O.K. for extra work, plus $1,552.78 for interest (PX18), and that the court should therefore disallow the amount of the jury’s award of $25,-243.48 in excess of $5,267.48.

The court granted T.O.K.’s motion. Judgment was rendered granting T.O.K. a recovery of $67,307.91 against defendants. The interlocutory judgment was also finalized in favor of Parks-Davis against the Rosen defendants for $67,307.91.

The court’s computation of the $67,307.91 awarded T.O.K. is not shown in the record. In their briefs, the parties say the judgment was calculated in this manner: T.O.K. was allowed $88,603.37 under the jury’s answers to special issues 14 and 15; prejudgment interest in the sum of $10,616.96 on the individual invoices upon which the $88,-603.37 allowance was based; the funds retained by defendants from T.O.K.’s billings in the sum of $33,980.12; and $25,243.48 under the answers to special issues 16 through 21. T.O.K.’s total allowance was $158,443.93. Parks-Davis and the Rosen defendants were allowed $76,171.00 under the answers to special issues 32 and 33; and $14,965.02 under the answers to special issues 34 and 35. Their total allowance was $91,136.02. T.O.K. was granted recovery of the $67,307.91 difference.

Defendants contend that the jury’s answers to special issues 26 and 27 (failing to find that T.O.K. breached the contract by failing to recondition pipe in the Houston yard and by failing to remove pipe from the ground during the months of January, February, and March, 1976) are against the great weight and preponderance of the evidence. We overrule those contentions. It is undisputed in the record that T.O.K. did not remove all of the pipeline and that it had not reconditioned all of the pipe it had removed when it ceased all operations in March, 1976. The controlling question tried by the parties was whether T.O.K.’s abandonment of the work was caused or not by defendants’ breaching the contract by failing to pay T.O.K.’s invoices for December, 1975, and January, February, and March, 1976. The jury resolved the question in favor of T.O.K. in the answers to special issues 14, 26, and 27.

T.O.K. began work under the contract in late November, 1974. In April, 1975, because of heavy rains and floods producing difficult working conditions and resulting in extraordinary damage to the right-of-way by the pipe removal equipment, the parties agreed to cessation of the pipeline removal from the ground. T.O.K. resumed excavating the pipe about October 1,1975, after the amendatory contract was executed. From April until October, T.O.K. continued reconditioning the pipe at the Houston yard. T.O.K. excavated the pipe in October, November, and December, 1975, but it did not in January, February, and March, 1976. However, it did continue with the pipe reconditioning during all of those months until it abandoned the project on March 11, 1976. After T.O.K. left the job, the defendant employed other contractors to finish the excavation and the reconditioning of the pipe, including the reconditioning of pipe removed from the ground by T.O.K.

In summary, T.O.K.’s primary contentions were that it abandoned the project and was justified in doing so because defendants failed to pay its invoices, and that it was prepared and ready to continue with the contract if the invoices had been paid. Defendants asserted that they were justified in withholding the payments because T.O.K. quit removing pipe from the ground after December, 1975, when only the easiest part of the excavation had been completed, and after T.O.K. had threatened taking bankruptcy in November and December, and because of other problems involving the asserted lack of needed equipment by T.O.K. to finish the job. The jury resolved that dispute in favor of T.O.K., and in the light of all of the proof we hold the jury’s answers to special issues 26 and 27 are not against the great weight and preponderance of the evidence.

Defendants contend that the court erred in allowing T.O.K. recovery of the jury’s award of $25,243.48 (in the answer to special issue 18) for extra work and interest because T.O.K. pleaded for only $3,714.70 for extra work and because there was no agreement by the defendants that they would pay for extra work performed by T.O.K. or expenses incurred by it. Those contentions are overruled.

In answers to special issues 19 and 20, the jury found that T.O.K. suffered consequential damages by reason of the defendants’ breach of certain duties assumed by them under the contract. It is clear from the verdict that the jury’s award of $25,243.48 in .answer to special issue 18 includes awards for some of the consequential damages sought by T.O.K.; and, contrary to defendants’ contentions, we hold the trial court properly reconciled the verdict to that effect on T.O.K.’s motion for judgment. It is also evident that in making the award the jury allowed T.O.K. the amounts reflected by PX14, PX16, PX17, PX18, PX20, PX21, and PX23, which total exactly $25,-243.48.

T.O.K. was entitled to just compensation for loss or damage actually sustained by it resulting from breaches of contractual duties by defendants. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 487 (1952). Defendants do not question the measures used by T.O.K. for calculating its consequential damages, and that issue is not before us. T.O.K. was also entitled to recover in quantum meruit upon an agreement implied by law for the reasonable value of services rendered and accepted by defendants which were not covered by the contract. Black Lake Pipe Line Co. v. Union Const. Co., (Tex.1976) 538 S.W.2d 80, 86.

It was defendants’ duty under the contract to promptly remove the excavated pipe from the storage yards along the right-of-way to the Houston yard; and it was T.O.K.’s responsibility to load the pipe onto defendants’ trucks at the storage yards. There is evidence that because defendants failed to furnish trucks on a regular schedule, some overtime loading on Sundays resulted, and T.O.K. also suffered some crew downtime for want of trucks to load. PX14 represents T.O.K.’s claim for only the overtime for crews and equipment. Defendants received the benefit of that extra work. Also, in answer to special issue 36, the jury found that defendants agreed to pay for the loading overtime, and also agreed to pay for the equipment lot rental for $400.00 during the summer of 1975, reflected by PX21. Defendants’ contention that the evidence is factually insufficient to support those findings is overruled. The remaining damages allowed by the jury in the answer to special issue 18 resulted from defendants’ breach of their duties under the contract, and were therefore properly recoverable by T.O.K.

We notice that although the Rosen defendants admitted in their pleadings that T.O.K. was entitled to recover the $2,520.00 shown on PX15 for extra-depth ditch work, Parks-Davis did not join in the admission. The submission of the issue to the jury failed to result in a finding favorable to T.O.K. The court’s failure to allow T.O.K. recovery against the Rosen defendants on this admitted item likely resulted from the jury’s answer thereon against T.O.K. and also the jury’s failure to find, in answer to special issue 4, that defendants’ misrepresentation of the depth of the pipe was material to the execution of the contract. In any event, T.O.K. does not complain because it was not allowed this recovery; and defendants may not complain about it.

Under the contract, it was defendants’ duty to contact the landowners along the right-of-way in front of T.O.K.’s crews, and have the right-of-way open for T.O.K.’s excavation of the pipe; but T.O.K. assumed responsibility in paragraph 7 for restoring the right-of-way to an acceptable condition, and in paragraph 13 it assumed the “entire responsibility” for and agreed to indemnify defendants against “all losses, expenses, damages and claims” caused by it to the landowners’ property. The procedure agreed to and used by the parties for dealing with the landowners was this: Defendants employed a company known as Coates Field Service to make the advance contact with the landowners, and they also used their own employee, Steven Rosen, for that purpose. The landowner was contacted, arrangements were made for T.O.K. to come through the property, and in most instances settlement was made with the landowner after T.O.K. had completed removing the pipe and had restored the right-of-way.

The Rosen defendants pleaded for recovery of $152,381.44 allegedly paid by them to landowners for property damages and expenses in connection therewith. Their proof showed they paid $152,343.44. In the answers to special issues 32 and 33, the jury found that the Rosen defendants had made expenditures in connection with property damages, but found that $76,171.00 would “fairly and reasonably indemnify” them. Defendants assert that the evidence conclusively establishes that they paid $152,343.44 for property damages and expenses, and that the court erred in overruling their motion for judgment for that sum notwithstanding the jury’s answer to special issue 33. We disagree. The proof on that element of the Rosen defendants’ counterclaim was PX15, which, according to defendant Harvey Rosen, was a summary prepared by him of checks representing (1) payments from Coates Field Service to landowners, (2) periodic payments from defendants to Coates Field Service reimbursing Coates for the payments made by it to the landowners and also paying Coates for its services, and (3) payments by defendants’ employee Ste.ven Rosen to the landowners. The pages dealing with payments to landowners contained columns listing the landowners’ names, the date of each check to them, the amount of the check, the number of the check, the name of the agent who made the payment, and a remarks column showing what the check was for. The summary showed that Coates’s agent paid 442 landowners in individual amounts ranging from $1.00 to $3,300.00, totaling $121,202.09; and it showed that defendants’ agent paid 119 landowners in individual amounts ranging from $5.00 to $1,000.00, totaling $21,718.56. A separate page of the summary listed defendants’ reimbursement checks to Coates, which also included in their total $9,392.79 paid to Coates for its services. Defendants’ witness stated that he had with him in the courtroom “all of the cancelled checks, all of the executed releases from the landowners, and all of the invoices submitted [to him] by Coates Field Service representing payments by them in connection with this matter.”

T.O.K. did not object to defendants’ offer of the summary into the evidence.

The transactions between Coates Field Service and the landowners, between Steven Rosen and the landowners, and between defendants and Coates Field Service, and the records resulting from those transactions which formed the underlying records for the summary PX15, were all hearsay to T.O.K. “Hearsay evidence is no evidence at all. Whether admitted over or without objection, it is incompetent and without probative force.” Knapik v. Edison Bros., Inc., 313 S.W.2d 335, 337 (Tex.Civ.App. — Waco 1958, writ ref.). “Such incompetent evidence can never form the basis of a finding of fact or of the judgment of a court; and this is so whether it be objected to or not.” Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941). A summary of voluminous records is no more admissible than the underlying records; and in order to overcome the hearsay nature of the underlying records, a proper predicate must be laid for their admission as business records in accordance with Article 3737e, Vernon’s Tex.Civ.St. Black Lake Pipe Line Co. v. Union Const. Co. (Tex.1976) 538 S.W.2d 80, 92. In our case, defendants did not attempt to establish the predicate for the admissibility of the records underlying their summary PX15. The summary was hearsay evidence. The court properly overruled the motion for judgment based upon it. T.O.K. does not complain about the $76,171.00 recovery allowed the Rosen defendants on the jury’s answer to special issue 33.

The Rosen defendants pleaded in their counterclaim that T.O.K. “cut or broke 52,122 feet of removed pipe into approximately 20 foot lengths contrary to the Agreement which specifically provides for all pipe to be cut into 40 feet lengths,” and that “by reason of the breach” they were entitled to deduct from payments otherwise due to T.O.K. “an amount equal to $.58 per lineal foot for each foot of damaged pipe totalling $30,230.00.” Those pleadings were based upon paragraphs 6 and 18 of the pipeline removal contract which read as follows:

“6. T.O.K. agrees that it shall perform all work so as to avoid the creation of dents both inside and outside of said pipeline. It agrees that prior to delivery to Parks-Davis, it shall cut the pipe in approximate 40-foot lengths, using the rough cut or torch cut method, and as near as possible to cut only at the welds and to strap all pipe and cut at a minimum of two inches behind the collar.
“18. It is specifically provided that if in the removal, delivery and reconditioning of said pipe any damage should occur to the pipe which is caused by T.O.K.’s acts or negligence, then Parks-Davis shall deduct from the payments otherwise due to T.O.K. an amount equal to 58$ per lineal foot for each joint of damaged pipe.”

T.O.K. answered defendants’ claim by alleging that “all pipe removed by it was cut into lengths of approximately 40 feet,” and that the cuts “were made as near as possible only at the welds and such cuts were made at a minimum of 2" behind the collar, as required by the contract. Where such pipeline was cut into lengths less than 40 feet, it was only because the contract in question required that such cut be made only at the welds and at a minimum of 2" behind the collar.” The question of the “short pipe” credit pleaded for by the Rosen defendants was submitted to the jury in special issues 34 and 35. In the answer to special issue 34 the jury found that T.O.K. “failed to cut 64,500 feet of pipe into approximately 40 foot lengths”; and in the answer to special issue 35 the jury found that “the Defendants are entitled to $14,-965.02 as a credit as a result of T.O.K.’s failure to cut pipe into lengths of approximately 40 feet.” The Rosen defendants assert that the evidence shows conclusively that there were 64,504.4 feet of pipe cut into lengths shorter than 30 feet, and that as a matter of law under the terms of the contract they were entitled to a credit of 58$ per foot for the short pipe (which totals $37,412.55) against whatever recovery the court allowed T.O.K., rather than a credit for only $14,965.02 found by the jury. We overrule those contentions.

The short pipe in question was composed of only eight-inch and ten-inch pipe. The evidence shows that defendants paid Gulf 69$ per foot for the eight-inch pipe and $1.14 per foot for the ten-inch pipe. It is undisputed that T.O.K. and the defendants knew and expected when they executed both the original and amendatory contracts that proper removal of the pipe by T.O.K. in a workmanlike manner would result in the cutting of varying lengths of short pipe which would not approximate forty feet. Nevertheless, the short pipe was transported to the Houston yard and reconditioned there by T.O.K. along with the other pipe, and defendants paid T.O.K. 58$ per foot for its removal and reconditioning, except for that set forth in the invoices which have not been paid by defendants. Defendant Harvey Rosen testified that after the project started the parties agreed that T.O.K.’s invoices would include the work done on the short pipe “so there would be working capital,” that the short pipe would be placed in a separate stack as it accumulated, and that “we paid [the invoices] with the understanding that we would adjust” the payments after the project was completed.

Using tally sheets made and kept jointly by the parties, defendant Harvey Rosen testified without objection that there were 64,504.4 feet of pipe cut into lengths shorter than 30 feet by T.O.K. However, at another time when he was discussing the percentage of the project defendants contended T.O.K. had completed, he said the short pipe under 30 feet totaled 63,000 feet. Also, discrepancies in the total footage of the short pipe was raised in Rosen’s testimony as to the amount of short pipe sold as scrap. Without setting forth all of the proof, we hold it does not conclusively establish the figure 64,504.4 sought by defendants.

Rosen said the pipe weighed 28.55 pounds per lineal foot, and that it sold as scrap for $50.00 per ton. He testified to facts from which the jury could have determined that defendants received an amount between $30,935.66 and $46,036.87 for the short pipe sold as scrap, and that they sold some (varying from 500 or 600 feet to 5,000 or 6,000 feet in his testimony) to be used in the construction of culverts. The price received for the culvert pipe is not shown in the record. The tally sheets on the short pipe showed 6,195 feet of ten-inch pipe. The remaining 58,305 feet (64,500 less 6,195) was eight-inch pipe. The cost to defendants for this pipe would have been $47,292.75 (6,195 feet X $1.14, plus 58,305 X $0.69). Apparently, the jury determined the amount they believed defendants received for pipe sold as scrap and allowed defendants the difference between that amount and the cost of the pipe in their answer to the question “what amount of money, if any, are the Defendants entitled to as a credit as a result of T.O.K. Co., Inc.’s failure to cut pipe into lengths of approximately 40 feet?” submitted to them in special issue 35.

Defendants do not argue that the jury’s allowance of $14,965.02 is not a fair and reasonable reflection of defendants’ actual loss resulting from short pipe. Rather, they contend that the contract expresses the intention of the parties to treat the short pipe in question as “damaged pipe” within the meaning of paragraph 18, entitling defendants to a credit of 58$ per foot. T.O.K. disputes that contention.

The following provisions of the contract are also pertinent to the question:

“1. T.O.K. shall remove and recondition all of the pipeline.
“14. T.O.K. shall complete its work in a good and workmanlike manner and shall use the best practice in pipeline removal and reclamation. It shall perform all work so as to deliver said pipe in a completely straight condition, free of dents with collars aligned. T.O.K. further agrees that it shall remove teeth from its back-hoes wherever the equipment might strike the pipe so as to preclude the possibility of such teeth creating a dent in the pipe.
“17. Parks-Davis agrees to pay T.O.K. the sum of 58$ per foot for all pipe delivered to and accepted by Parks-Davis in compliance with the terms of this Agreement.
“19. All pipe, equipment or other material and damage thereto shall be at the sole risk of loss or damage of T.O.K. until the pipe has been delivered to and racked in Parks-Davis’s yard.”

The contract was prepared by defendants. Although its language does not directly state that short pipe would or would not be “damaged pipe” within the meaning of paragraph 18, none of the parties claim the agreement is ambiguous. Obviously, the trial court construed the contract favorably to T.O.K.⅛ contentions. In the light of all of the provisions dealing with payments to T.O.K. and the question of damaged pipe and deductions from payments by defendants based on damaged pipe, and considering the subsequent agreement between the parties for handling the problem of payment for short pipe work by T.O.K., we agree with that construction.

Defendants have other points and contentions, including a complaint about the award of the retained funds to T.O.K.; and in a cross point T.O.K. asserts that Parks-Davis was erroneously allowed the benefit of the damages awarded under the counterclaim pleaded by the Rosen defendants. All of those contentions are without merit under the record, and they are overruled.

The judgment is affirmed.

      . The pipe was “drifted” by running a measuring device through it to be certain there were no inside dents or other obstructions which would prevent or interfere with the passage of a drill bit.

      . The pipe was “strapped” by marking it at the place it was to be cut.