
    AIKEN vs. HALE & McDONALD.
    Appeal from Lamar connty.
    
      .Breach of Contract — Practice—Pleading—Case Sated. — The original petition claimed damages for breach of contract and did not, in subsequent pleadings, relinquish that character of claim, otherwise than by alternate prayer for specific performance, until by amendment, compensation was claimed for performance of service under such contract. The cause of action depended upon the same facts anti the same transaction throughout and the different variations occurring in pleadings at different times have had relation only to question of relief,, Held, not to change the character of the causo oí action. Under our system of pleading, the cause of action depends upon the facts stated in the petition appropriate for recovery, rather than the particular breach laid. Special exception was that “the cause of action attempted to be set up by plaintiff shows upon its face that it comes within the statute of frauds, and cannot be sustained.” The exception was properly overruled. It is an accepted doctrine that one who has rendered service in execution of a verbal contract which, on account of the statute cannot be enforced against the other party, can recover the value of the services rendered upon a quantum merieit.
   Affirmed.

Walker, Commissioner.

Adopted.  