law-implied-vs-express-contract | | meeting of the minds on specific terms and conditions | definiteness of agreed-
upon contractual terms | restrictive indorsement on check | ratification by conduct, acceptance of benefits
| defenses to breach of contract claims |
IMPLIED CONTRACT CITES FROM OTHER COURTS: Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters.,
625 S.W.2d 295, 298 (Tex. 1981) (discussing implied contracts by conduct); Live Oak Ins. Agency v. Shoemake,
115 S.W.3d 215, 218-19 (Tex. App.-Corpus Christi 2003, no pet.) (same)
QUASI CONTRACT / CONTRACT IMPLIED IN LAW / IMPLIED IN LAW CONTRACT
“A contract implied in law, or a quasi-contract, is distinguishable from a true contract because a quasi-contract is
a legal fiction, an obligation imposed by law regardless of any actual agreement between the parties.” Fraud-
Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 386 (Tex. App.—Fort Worth 2003, pet. ref’d); see Fortune Prod.
Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000).
An implied-in-fact contract "arises from the acts and conduct of the parties, it being implied from the facts and
circumstances that there was a mutual intention to contract." Lopez, 93 S.W.3d at 557 (quoting Haws & Garrett
Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972)). A meeting of the minds
is also an essential element of an implied-in-fact contract. Id.; see also City of Houston v. First City, 827 S.W.2d
462, 473 (Tex. App.-Houston [1st Dist.] 1992, writ denied) ("The only difference between express contracts and
implied contracts is the character and manner of proof required to establish mutual assent. . . ."). The court
"must look to the conduct of the parties to determine the terms of the contract on which the minds of the parties
met." Id. (quoting Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 385 (Tex. App.-
Amarillo 1994, no writ)). For a contract to be valid between parties, it is not necessary that the agreement be
signed by both parties. Hearthshire Braeswood Plaza, Ltd. P'ship v. Bill Kelly Co., 849 S.W.2d 380, 392 (Tex. App.
-Houston [14th Dist.] 1993, writ denied).
An implied agreement, whether arising under common law or the Uniform Commercial Code, exists when the acts
of the parties are such as to indicate according to the ordinary course of dealing and common understanding
that there is a mutual intention to contract. Tubelite, 819 S.W.2d at 804-05 (quoting Preston Farm & Ranch
Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 299 (Tex. 1981)); see also Tex. Bus. & Com. Code Ann. §
1.303(b) (Vernon 2009) ("A course of dealing is a sequence of conduct concerning previous transactions
between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of
understanding for interpreting their expressions and other conduct.").
Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(Bland)
(real estate transactions, failure to promptly provide pay-off amount for real estate loan not actionable)
(failure to prove existence of contractual obligation to provide pay-off statement, no quasi contract, earnest
money contract deadline missed, no closing)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00359-CV Deborah H. Underwood Graves v. Nancy D. Logan
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss
EXPRESS CONTRACT PRECLUDES QUASI CONTRACT
“[i]f the parties have expressly stated the terms of their agreement, they have created an express contract and
are bound by it to the exclusion of conflicting implied terms." Emmer v. Phillips Petroleum Co., 668 S.W.2d 487,
490 (Tex. App.-Amarillo 1984, no writ).
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