
    TOWER CONTRACTING COMPANY, Inc., of Texas, Appellant, v. Hunter FLORES, d/b/a Freeport Machine and Boiler Shop, Appellee.
    No. 12987.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 4, 1956.
    Rehearings Denied Oct. 25, 1956.
    
      Bell, Camp & Gwin and C. R. Bell and Lawrence P. Gwin, Bay City, for appellant.
    Turner, Rodgers, Winn, Scurlock & Terry .and Frank J.. Scurlock,'Dallas, for appellee. ,
   GANNON, Justice.

Tower .Contracting Company, Inc., of Texas, the appellant, appeals from a money judgment rendered against it.in favor of appellee, Hunter Flore's, in amount of $21,-339.13 with interest- and costs, -being -the balance found to be due on the contract and for extras under, a certain..subcontract whereby-appellee bound himself to do certain - work for -appellant in. connection with a primary contract to which appellant .had bound itself. •- ■

The parties, both the plaintiff Fiores and the defendant Tower Contracting Company, Inc., of Texas, are in the general contracting business, Both bid on a contract to be awarded by the Corps of Engineers of the United States Army for repair of the Colorado River Flood Gates on the Intracoastal Waterway in Mata-gorda 'County. The defendant was the successful bidder. However, upon the contract being awarded it,, the defendant sub-contracted a substantial part of the work to the plaintiff Flores.

The sub-contract is not as artfully drawn as might be, 'but in the light of the evidence- and the plans and 'specifications for the work prepared' by the Corps of Engineers 'governing the primary-contract, it may be followed without difficulty. ■ The writing appears upon three sheets of a purchase order form of defendant, each of which sheets bears the signatures of the parties. We reproduce the contract and attach it to this opinion as Exhibit A.

Following completion of all- the work required under the sub-contract, the parties fell in dispute in respect to the amount owing Flores by Tower Contracting Company, Inc.

The dispute between the parties, as it is presented here, arises principally under Items 4 and 7 of the sub-contract. < Flores furnished the bolts, nuts and galvanizing required by Item 4 of the contract, denominated: Removal and Reinstallation of Rotten Timber Fenders. However,, he claimed these to be extras and sought compensation therefor over and above the contract price for this item. In réspect tó Item 7 of the contract providing for the -fill — though the parties are not in dispute that the work required- thereby was plainly- ascertainable from the Technical Provisions of the primary contract, Section 1, -paragraph 1-04 and from the site plan No. 1/1, still Flores' claims as an extra compensation for some 10,248 cubic yards of compacted dirt required to complete the fill provided for under Item 7 because there was contained in the plans and specification inviting bids on the primary contract and in connection with the item of the fill, an estim'até 'of the Corps of Engineers -(evidently made from the site plan drawings and the Technical Provisions) that it would require 22,000 cubic yards of compacted dirt to complete the fill. Actually 32,248 cubic yards were required.

This estimate appears in the papers inviting bids on the primary contract, as follows:

“Description " ’ Estimated' ' Unit
Quantity
--Fill - •' 22,000. • C.Y.”

Plaintiff’s pleading, contains no, allegation of, fraud, accident, or mistake. There is no.-prayer for rescission of the contract. His suit is on the contract as drawn so far, as, under his construction, the contract covers the work done, and on express contracts for the extras; supplemented in respect to the extras alone, by a count in .quantum meruit.

The parties construed the contract as requiring the work on the fill to be completed by July 25, 1954. On July 8, 1954, while the work was in progress, the Area Engineer of the Corps o-f Engineers complained ini writing to Tower Contracting Company that in his opinion a diligent effort was not being made to prosecute the work in completing the fill. On the same day Tower Contracting 'Company wired Flores, cancelling his contract. The wire is as follows: “You are advised your contract-with us is cancelled this date by directive of the- corps of .engineers work to be Completed and backcharged tó your account.” In point of fact, the Corps of Engineers had not; as -it had the right to do, directed the cancellation of.’ the subcontract, but had only requested that additional or more suitable- equipment be employed in the -work of completing the fill. Two days later, on July' 10, 1954 — appellant in the meantime having sub-contracted the' completion • of the Work on the fill' to 'Hall & Redinger — Hall & Rediíig.er moved 'in its' equipment and proceeded on the' work of completing the fill. However, Flores refused to recognize the cancellation of his contract as valid and he continued oil the job. The work was completed within the time limited under the contract by the combined work of Flores and Hall & Red-inger. It is Flores’s claim that he could have timely completed it alone had he been permitted to do so.

Tower Contracting Company,, by. its pleadings, cross-acted by way of offset for the amount it claimed- it had been .out on account of additional equipment put on the work by its second sub-contractor, Hall & Redinger, to wit: $10,219.93.' This cross-action and offset rested on' Tower’s contention that Flores was. proceeding about the work on the fill with insufficient dispatch to complete it.on time so as to avoid a $25 a day. penalty for-delay, provided for in the: primary contract, and that this, constituted a.breach of the contract by Flores. There was evidence from which the jury could have found that the under-estimate of 22,000 cubic yards of dirt required to complete the fill was discovered by Flores at or about the commencement of the work, or shortly thereafter; that the error was called to the attention of the Tower Contracting Company by Flores, and that at the time Flores was assured by Tower “that he would make it' right with us” — “that there would have to be an adjustment on that extra yardage.” It is undisputed that these statements were made after Flores bound himself to the sub-contract. Flores testified that his lump sum bid of $8,250 for fill was based on the erroneous estimate- of 22,000 cubic yards-of dirt required to complete it, or at the. rate of 37½ cents per cubic yard.

So far as is material here, the case was submitted to the jury on, the following special issues, which were answered as indicated-:

2.-“Do you find from a preponderance of the evidence that the' bolt's, huts and galvanizing furnished by Fibres in connection with Item 4 (Removal and Rein-stallation of Rotten Timber Fenders) were extras as that term is herein defined? 1
“Answer Yes or No.”
Answered “Yes”.
3. “Do you find from a preponderance of the evidence that the additional' 10,248 cubic yards of compacted dirt required to complete the fill under Item 7 (Fill) was an extra as that term is, herein defined ?
“Answer Yes or No.”
, Answered “Yes”.
4. -“'What' do you- find from a preponderance 'of the evidence to be' the reasonable valfie of furnishing the extra 10,24$ cubic yards of dirt, if you-have found it to be an'extra? ■ ' ■ :
“Answer by .stating the amount,, if. .any, in .dollars and.cepts.”. .
Answered “$3,843.00*’.' ■
5. “Do you find from- a. preponderance' of the evidence that under all the circumstances which existed on or prior to July 10, 1954, the plaintiff was proceeding with due diligence under his contract with the defendant to fill the by-pass channel?
“By the term ‘due diligence’ as used herein is meant such diligence as would be required for the plaintiff,to complete the fill in .accordance with the terms and pro.visions of the contract. between plaintiff- and defendant and the .-plans-and specifica-; tionsi : .
“Answqr Yes or No.”"
Answered “Yes”,-
6. “Do you find from a preponderance of the evidence that under the circum-' stance's that existed on or prior tp July 10, 1954, a reasonably prudent person situated as, was, defendant, would have moved in equipment as did defendant to help com-' píete the, fill ?
“Answer Yes or No.”
Answered “No”.'
7. “From a preponderance of the evidence what do you find to be the reasonable cost of the equipment furnished and labor performed by the defendant in completing the fill?
“Answer by stating the amount, if any, in dollars and cents.”- ...
Answered “None”. •

Appellant’s principal complaints which it raises by its. points 1 and 2 are that the trial court erred in permitting the jury to determine that the bolts, nuts and galvanizing as well as the amount of dirt required to complete the.fill over and above, the estimate contained in the. Government papers were extras, .and in .pendering judgment for the value of these items, .over and-above the sums provided for in the subcontract. The judgment includes an allowance of $2,986.19 for bolts, nuts' and galvanizing in addition to -the contract price stipulated under Item 4 and as well an allowance of'$3,843 over and above the contract price ' for the fill on account' of' 10,248' additional' cubic yards of dirt. We sustain these points. "

We first consider .appellee’s claim and appellant’s denial that the facts authorized a jury' finding that the contract did not embrace an obligation bn Flores’s part to', furnish the bolts, nuts,'and-galvanizing; in connection with the work he contracted to do under Item -4 of the contract. A study of' the contract will reveal it includes a general provision, conjunctively stated,to the effect that the payments provided for the various items of the work include (a) all necessary tools, equipment, - fuel, scaffolding, and (b) any and all other materials,- equipment and labor, necessary to coniplet.e the above work according to the plans and specifications for the maintenance and repair -to the east flood gate Matagorda Locks. Also that Item 4 of the contract providing for the removal and reinstallation of rotten timber fenders contains an apparent spécial exception to the above general requirement, by .which “all new. timber shall be furnished on job site by prime contractor.” It is inescapable to our minds the contract plainly provides that -all materials required to complete the work contemplated by Item 4, denominated Removal, and Reinstallation of Rotten Timber. Fenders, except “new timber”, including the. bolts, nuts .and galvanizing, are to be furnished by Flores. It is -equally clear that by the special provision contained in Item 4, all new timber is to -be furnished by Tower Contracting Company, and this because of the'special provision therefor unquestionably inserted in the contract as an'exception'to the general provision requiring the - sub-contractor to furnish “any and all *■ * * • materials ■ * * *” required to-complete the -work. Tn his-brief appellee seeks to‘support his position that the -value of the bolts, nuts and galvanizing'was properly allowed as'an extra on the claim that ■ “the sub-contract merely obligated the appellee to 'furnish the labor and equipment with which to do the work. There is not'a specific provision in the entire sub-contract which obligated appellee to furnish' material going into the job.” This contention, we think, - is - refuted on the face of the contract itself. See Baker v. Baker, Tex.Civ.App., 169 S.W.2d 1016, construing a contract of' 'settlement',' general in its terms, but containing specifically stated exceptions- and applying the principle of éxpressio unius est exclusio alter-> ius. ' -

-In respect to the contention that the additional 10,248 cubic yards of compacted dirt, required to complete the fill over and above* the 22,000 cubic yards estimated by, the.' engineers was an extra— as we have pointed out, it is conceded by both parties that Item 7 of .the sub-con-tráct required- Flores to do the work of making the fill according to the plans' and specifications and drawings which were part of the primary contract, including the' installation of the extra 10,248 cubic yards of dirt. At the .submission and in response to a question, directed to appellee’s com tention that the additional 10,248 cubic yards was an extra, his counsel was unwilling to commit himself to the proposition that had the estimate proved wrong on the topside; i.e., had it proved to be an over-estimate, say by 50%, Tower would have been entitled to an abatement in the lump sum' contract price of $8,250 proportionately. Since the contract is plain in respect to the work which Flores undertook to do and the lump sum price for which he undertook to do it, we. are unable to see how, in the absence of a plea for rescission, Flores’s reliance upon a mistake of the Corps of Engineers can avail him. Flores did not contract to install 22,-000 cubic yards of dirt. He contracted to install the fill according to the plans and specifications therefor. This he does not deny. Had there been a plea for reformation, based upon mutual mistake, we are at a loss to see how the 'Court could reform the contract,. even assuming mutual mistake, so as to make a new contract for the parties. When the .mistake was discovered, plaintiff did not sue for rescission on claim of hardship, accident, mutual mistake or fraud in inducing the execution of the contract; but, on the other hand, he proceeded, about the work. Galveston Causeway Construction Co. v. Galveston, H. & S. A. R. Co., D.C., 284 F. 137, affirmed. 287 F. 1021. In these circumstances, he is bound by his contract.

Though the evidence showed that after the mistake in estimation , above referred to was discovered, appellee was assured by appellant that the matter would be adjusted or made right, still appellee wholly fails to show any consideration for such promise. An agreement by a contractee to compensate a contractor for doing what he is already bound to do by a valid contract is without consideration. Jones v. Risley, 91 Tex. 1, 32 S.W. 1027; Stone v. Morrison & Powers, Tex.Com.App., 298 S.W. 538.

Whether, had Flores pleaded an estoppel based upon Tower’s assurances that he would be compensated for the extra dirt required for the fill, he might have recovered therefor, .we need not consider. Any such, estoppel would.have to be based upon change of position — in this case Flores’s abandonment of his right of rescission, if any, based on mutual mistake. However, no such question is before us. There is no hint of estoppel in the pleadings.

We hold that under the undisputed facts Flores was not entitled to any allowance as for extras on account of furnishing the bolts, nuts, and galvanizing, dr for moving the additional' 10,248 cubic yards of dirt over and above the'' estimate of the engineers required to complete the fill, because he was legally bound under his contract for these on the compensations provided for by Items 4 and 7 of that instrument.

.In support of his position that the contract did not cover the extra 10,248 cubic yards of dirt required to.complete the fill, and that he is entitled to an allowance as an extra on that account, appellee cites us to United States ex rel. Johnson v. Morley Const. Co., 2 Cir., 98 F.2d 781, 786. Under the facts of that case and the wording of a certain-sub-contract there involved, it was held that the sub-contract incorporated all. of the provisions of the main contract, including. a: provision 'of- such main contract providing for the allowance of -an .extra should rock be encountered within the limits'of a required excavation.To our minds, the part of the opinion to which we- are cited — page 787, sub-title (2b), Rock Excavation — is not. analogous. Another part of the same opinion, however/would seem, by a process of reverse reasoning, to support our views. The subcontractor was allowed to recover as an extra for additional work induced by a mistake in the plans and specifications furnished him by the main contractor. The main contractor resisted the claim for this extra on the ground that in end result the sub-contractor had been required to perform no more or greater service than he had originally contemplated. The court said:

' “The judge allowed $10,350.29, for the regrading, to which the surety objects because in the end Rupp did no more -excavation than he had figured upon originally in his bid. We cannot sée the relévan'ce of this. Rupp did the work called for by the contract, as he vlas justified in understanding, it; when .Jie finished,, he, was entitled to the contract- price: .the equivalence of what l¡ie had. done with what he hg.d supposed, would., be negesspry, had nothing to do with, the case; if the. contract turned ou,t m.ore profitable, than he had expected, it, w;as his good, fortune.” (Emphasis supplied,), ., ....

Appellant’s third point reads • as follows:

“Where, under the undisputed evidence a substantial part of the total fill was made by Appellant, the burden is upon the Ap-pellee" to show the amount and value, of (the) part furnished by'him and it is error' to render judgment against the Appellant for entire amount’ of dirt moved by. the combined efforts of both parties.”

The point- is said to be germane to assignments of error Nos. 16, 17 and 26 in the motion for new .trial. 'Assignments-16 and 26 relate exclusively to the court submitting issues calculated to support an allowance as an extra on account of the additional 10,248 cubic yards of dirt required to complete the fill. -Assignment of error No.. 17 on the motion for new trial reads a-s, follows: • '

“17. ’ The Trial Court’ erred in refusing to incorporate in its charge to the jury Defendant’s requested Special Issue No. 2, as follows:. ‘From the" preponderance of the - evidence what additional sum of money, if any, would the Plaintiff have expended m completing the fill had Defendant not aided in the completion of the fill ?’ for the reason that had said issue been submitted .arid answered the answer thereto, when taken in connection with the answer to Special Issue No. 4 inquiring as to the reasonable value of furnishing the extra 10,248 cubic yards of dirt, which the jury answered $3,843.00, would have enabled the .Court to frame its judgment so as to award the Plaintiff the profit lie would have made and av.oid .the error of an excessive judgment and an unjust enrichment.” ,

' Point No'. 3 as made,, when read, in the light of "the’assignments of error in the motion for new trial to which it is said to be germane, is undoubtedly multifarious and technically bad for that reason. However; under the liberal rules of briefing, When error is';made to appear, we would be 'required^ on application to permit the filing of proper points of error. See Warnasch v. Wagner, Tex.Civ.App., 291 S.W.2d 389. " For this reason, though appellant cónibines in its argument un<jer this point complaints that the judgment should not have included any allowance for extras, along with its complaint that there was ho justification for the court' allowing a full recovery for the . contract price" at which appellee agreed to complete the fill, we will consider the latter complaint.— Especially in view of the fact that in the submission the parties treat appellant’s Point No. 3 as broad enough to permit it to argue -error of the court in allowing plaintiff the full' lump sum contract price for completing the fill in the face of undisputed. evidence that a substantial part of the work was done by Tower’s second contractor," Hall & Redinger.

The authorities are practically unanimous",--both within and without the •State, oh the proposition that where an owner wrongfully interferes with a contractor and prevents his completion of the contract, the proper measure of damages, where the contractor sues on the contract, is the contract price less .what would have been the cost to the contractor -of com-, pleting the work; . or, differently put, ■ the contract, value of the work actually done, plus any profit the contractor would have made had he been permitted to complete the performance of his contract; This, however, is not the sole measure of damages. In the case of. wrongful interference by an owner, the contractor may ‘treat, the contract as rescinded and recover on quan-. turn meruit .the fuli value of the work done, even though it may exceed the contract price. Here, in view;, of the .evidence .and the. condition of the .record, we would have had no difficulty in affirming .an allowance to the contractqr, of an.amount equivalent to the contract .price for the work actually done, but on the theory ,o.f .quantum mer-uit, had plaintiff’s pleadings . included a, count on quantum meruit applicable to.the work done by him under the contract, before he was wrongfully • prevented by Tower from completing it., But, there is no such count. Plaintiff’s pleadings do contain a plea of quantum meruit, but this plea relates exclusively to the claim for extras. It is not broad enough to include the work done under the written sub-contract. We are convinced it was error- for the trial court, under the trial pleadings, to permit a recovery for the full $8,250 lump sum contract price for completing the fill without any deduction on-account of what would have been the cost- to Flores of doing, the substantial part of the work which the evidence shows-was-done by Hall &' Redinger. The evidence does not show a case .of -substantial performance but only of partial performance. .On a retrial plaintiff may -wish to revamp his pleadings to sué on quantum meruit for the-work done under'the-contract. In view of defendant’s evidence, to wit:' its payment to-Hall & Redinger of $9,413.79 -formless.' work than was done by plaintiff, an allowance on such basis might very well. exceed a recovery under the contract itself. For Texas -cases on- the measure of dámage applicable under ! the ■ circumstances of- .¡this case, ■ see Texas Associates, Inc. v. Joe Bland Const; Co., Tex.Civ.App., 222 S.W.2d 413; Hood v. Raines, 19 Tex. 400; Porter & McMillan v. Burkett, Murphy & Burns, 65 Tex. 383; Hillyard v. Crabtree’s Adm’r, 11 Tex. 264; Carroll v. Welch, 26 Tex. 147; Weis v. Devlin, 67 Tex. 507, 3 S.W. 726; Osage Oil & Refining Co. v. Lee Farm Oil Co., Tex.Civ.App., 230 S.W. 518. Text references are 17 C.J.S., Contracts, § 367, p. 834; 9 Amer.Jur., Building Contracts, Sec. 45, page 34, and the annotations in 66 A.L.R. 745, and 17 A.L.R.2d, page 968.

The reason for the rule establishing, the stated measure of damage where a- contractor has been unjustifiably prevented from finishing his ¡work and sues on the contract seems to rest on the legal proposition that, while a .contract is exec-utory, the owner has -the power to violate or renounce his contract and that in so doing he subjects himself only to such damages as will actually compensate the other party for. having.the f-ull performance pre-ventedi See Rockingham County v. Luten Bridge Co., 4 Cir., 35 F.2d 301, 308, 66 A.L.R. 735, stating, the rule as follows: .

“And the rule as established by the great weight of authority in America is summed up in the following statement in 6 R.C.L. 1029, which is quoted with approval by the Supreme Court of North Carolina in the recent case of Novelty Adv. Co. v. Farmers’ Mut. Tobacco Warehouse Co., 186 N.C. 197, 119 S.E. 196, 198: ‘While a contract is executory. a party, has the power, to stop performance on the other side by an explicit direction to .that effect,, subjecting himself to such damages as will compensate the other party for being stopped in the performance on .his part at that stage in the execution of-the contract. The party thus forbidden . cannot afterwards go on, and thereby increase the damages, -and then recover such damages- from.the other party. - The legal right of either party. 4o violate, .abandon, or renounce his contract, on .the usual- terms of compensation'to the other for the damages, which the law .rec-ognizas and allozos, subject to• the jurisdiction ■of equity to decree specific performance in proper cases, is universally recognized and-acted .upon.’”■ (Emphasis supplied.) ' •- - .- ■ ... '

We do not think that Judge Fly’s opinion in Mitchell v. Boyce, Tex.Civ.App., 120 S.W. 1016, indicating that a contractor is ■entitled to the full contract price for partial performance only, where the owner interferes and prevents completion, can be reconciled with what we consider to be more authoritative Texas authorities.

Appellee’s position on this point is not so much to quarrel with the measure of damage; which we have adopted, but to insist that the burden of proof, was upon •defendant to show what would have been the cost to plaintiff of performing the substantial part of the work of installing the fill which the record shows was done by Hall & Redinger. Plaintiff urges this on the theory that since the'jury by its verdict has established defendant’s conduct in preventing plaintiff from completing his contract to be wrongful, plaintiff ought prima facie be entitled to a recovery of the full contract price. We do not agree. It is well 'established that plaintiff’s case in his suit on the contract includes the burden of establishing his proper damages by a preponderance of the evidence. This burden plaintiff, no doubt, can discharge with not too great difficulty. Even were the question an open one, we would hesitate to place such burden on defendant in view of the difficulty, if not impossibility, of defendant making such proof, and also because it is plainly not defensive matter.

By an additional point, appellant says the judgment should be reversed because the verdict is “so excessive and contrary to the overwhelming preponderance of the evidence ás to constitute manifest injustice and to exhibit bias and prejudice against the appellant.” Though this point is also multifarious, we have considered it. We -find nothing .'excessive in the verdict, and there seems to be.ample support in the evidence for, all the jury findings, including those upon' which appellant’s cross-action was denied,, except possibly for-the finding in responsé to Issue No. 7 relating to the reasonable cost to the defendant in completing the fill, to which the jury answered “none”. We do not consider this answer 'fatal to the verdict as proof of pervasive passion and prejudice. It may have struck the jury' that defendant’s evidence on- the" point was unreliable arid, therefore, that they were unable to find any amount’ “from a preponderance of the evidence”. We say this-because defendant claims to have paid Hall & Red-inger for doing only a phrt’ of the Work an amount greater than that' for which plaintiff contracted to do'the whole, and plaintiff’s price to defendant was less than defendant’s’- price to the' Government. However, the answer “none” to Issue No. 7, -even if unjustifiable, does not establish passion and prejudice on the part of- the jury in answering' other issues sufficient alone to defeat defendant’s cross-action. See Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335, where it is said:

“There is nothing in the record suggesting that the jury was .induced by prejudice or by some improper influence to answer as it did the issue as to damages, ■ unless it is the bare fact that-.the answer is contrary to the undisputed- evidence, which shows that defendant in error suffered severe physical injuries. The action of a jury in answering- an issue directly contrary to the undisputed evidence ■ may be cause for suspicion that the answer was induced by prejudice or by improper influence. Blit we would not be justified in assuming that prejudice or improper influence was responsible for the jury’s Answers convicting defendant in error 'of contributory negligence when there is in the record substantial evidence supporting those answers, and no evidence that prejudice or improper influence entered into- or caused them, The following cases, in the first two-of'which applications for writ of error, were refused, - support our conclusion: McCormick v. Southwestern Bell Telephone Co., Tex.Civ.App., 36 S.W.2d 1082; Teston v. Root, Tex.Civ.App., 95 S.W.2d 524; Bendelin v. Thompson, Tex. Civ.App., 33 S.W.2d 220; Osterloh v. San Antonio Public Service Co., Tex.Civ.App., 77 S.W.2d 290; Harrison v Missouri, Kansas & T. R. Co. of Texas, Tex.Civ.App., 89 S.W.2d 455; Duff v. Roeser & Pendleton, Inc., Tex.Civ.App., 96 S.W.2d. 682; Greaber v. Coca-Cola Bottling Works of Dallas, Texas, Tex.Civ.App., 98 S.W.2d 1028; Robertson v. Humble Oil & Refining Co., Tex.Civ.App., 116 S.W.2d 820.” (Emphasis supplied.)

By points 5 and 6 appellant assigns that the trial court erroneously permitted the proof that extensions of time were issued by the Government to forgive liquidated damages provided for in the main contract, and also improperly permitted proof of the total amount paid by the Corps of Engineers to. appellant under the prime contract.- In view of the jury’s findings establishing that when the appellant interfered with appellee in the ¡performance of his contract, appellee: was proceeding with due diligence and that appellant .thus breached the contract, which finding is well supported by the evidence;." and, in view of the disposition which we are making of the case, the'error, if any, in admitting the proof .complained of,, is undoubtedly harmless. Non'e of it related to any material "issue in the case, and we are unable to find that the error, if any; was such as would reasonably be, calculated to cause, and probably did cause, a' result unfair to defendant.

An additional point of error complaining of the inclusion in the judgment of an item of $424.99 has been abandoned.

The sub-contract in question is clearly divisible in respect to its several items, as are the claims for extras from the several items in the contract. It is also true that plaintiff’s' claim'' for damages based 0⅛ defendant’s claimed breach ■ of Item 7 of the contract relating to the' fill is separable from defendant’s crbss-action against plaintiff, based on the same'item, in which defendant asserted that plaintiff first breached the contract — orí" winch cross-action judgment went against defendant in the trial court. See Leon v. Noble, Tex.Civ.App., 234 S.W.2d 454, construing Rules 97 and 174, Texas Rules of Civil Procedure, to permit separate trials in • proper circumstances of cross-claims growing out of a single automobile collision, and holding that plaintiff, who had been permitted to take a non-suit without prejudice as to his cause of action after defendant had cross-acted, was not barred in a.subsequent action, where cross-plaintiff proceeded to trial and lost in the original suit. See also Humble Oil & Refining Co. v. Luling Oil & Gas, Co., Tex.Civ.App., 192 S.W.2d 315, affirmed 144 Tex. 475, 191 S.W.2d 716.

Such cases as Texas Employer’s Insurance Association v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929, and The City of Austin v. Howard, Tex.Civ.App., 158 S.W.2d 556, are nbt thought applicable to the present record on the question of divisibility and separability of the several claims of the plaintiff and the cross-cláim - of <■ defendant.

Our order will be: (a) ,to reverse the judgment of the trial court in so far as it allows the . above discussed claims for extras, and here render_ judgment on said claims in favor 'of appellant; (b) to affirm the judgment.of the trial court in so far as. it denies appellant’s cross-claim for plaintiff’s-alleged'breach of Item 7 of the sub-contract, and in all other respects save as set out in (a) and (c) hereof; and (c) to reverse and remand the cause for a new trial solely on the right of plaintiff to recover on the’ claim's which it asserts under Item 7 'of the'sub-contract. -Our order will be without prejudice to the right of plaintiff, if he so.desires, to amend and set up an alternative count on quantum meruit for the work actually done by him under Item 7 of the sub-contract.

jWe withhold comment on the question of whether on such remand any of the fact issues which'may arise are res adjudicata by , virtue - of this judgment. The point may never- arise. It is not before us now.

CODY, J., not sitting.  