
    26398.
    Maddox v. Powell.
   Felton, J.

1. In á suit for breach of a written building contract, and a suit on quantum meruit based on a failure to pay the reasonable value of extra services and goods furnished outside of the written contract by reason of an oral agreement or an implied promise to pay arising upon acceptance of the services and goods, it was not error to allow an amendment enlarging upon and amplifying the two causes of action sued on over the objection that it sought to set up a new cause of action.

2. Where in such a suit it was originally alleged that the plaintiff had. fully completed the written contract sued on, there was no error in allowing an amendment alleging that the contract was substantially completed, and that full completion was prevented by improper conduct of the defendant, making completion impossible, over the objection that it added a new cause of action, sought to change the suit from one on the written contract to one on the contract and one on quantum meruit, and that it sought to treat the written contract as existing and rescinded at the same time.

3. The charge of the court to the effect that if the failure of the plaintiff to complete the written contract was due to her fault, she could not recover on it, but that she could recover on quantum meruit for extra material and services furnished by her outside of the written contract and accepted by the defendant in spite of her fault in not completing the written contract, was not error for the reason that the plaintiff would have been precluded from a recovery on the written contract if slie had breached it, but she would not have been precluded from recovering for the extras because the suit for them was not under the written contract, but on quantum meruit.

Decided October 8, 1937.

Rehearing denied November 26, 1937.

William P. Frosl, Dmis & Stephens, for plaintiff in error.

Thomas L. Slappey, George W. Westmoreland, contra.

4. There is no merit in the other assignments of error argued in the brief of the plaintiff in error. Those not insisted on are treated as abandoned. Judgment affirmed.

Stephens, P. J., amd Sutton, J., concur.  