Barton v. Flanagan
| Citation | 25 S.W.2d 947 |
| Decision Date | 26 February 1930 |
| Docket Number | No. 3369.,3369. |
| Parties | BARTON v. FLANAGAN. |
| Court | Court of Appeals of Texas |
Appeal from Lubbock County Court; Robt. H. Bean, Judge.
Action by Raymond Flanagan against Clarence R. Barton. Judgment for plaintiff, and defendant appeals.
Affirmed.
W. M. Peticolas, Jr., of Lubbock, for appellant.
Vickers & Campbell, of Lubbock, for appellee.
The parties will be styled as in the trial court.
The plaintiff, Flanagan, filed suit in the county court of Lubbock county, against defendant, Barton, to recover the sum of $421.50, the price of certain tools, etc., which he alleges he sold to the defendant. On trial before a jury, the court instructed a verdict for the plaintiff and on such verdict rendered judgment for the plaintiff. From this judgment the defendant has appealed.
The plaintiff's petition alleges his cause of action as follows: That on or about December 18, 1928, the plaintiff was the owner of the Lone Star Filling Station in the city of Lubbock, and on said date sold to the defendant his stock of tires, tools, jacks, grease gun, gasoline, oils, and accessories on hand, and used in connection with the operation of said filling station, at and for an agreed price of $421.50, to be paid by the defendant to the plaintiff at Lubbock, Tex., on or before January 18, 1929, and to bear interest from said date at the rate of six per cent. per annum.
The defendant filed his answer, consisting of general and special exceptions, general denial, and a special plea setting up that the alleged contract sued on by the plaintiff was not the contract entered into between the plaintiff and defendant; that if the court should find that the contract is as alleged by the plaintiff then pleading payment thereof, and further that the contract entered into between the parties was an oral contract in which it was agreed that if the plaintiff would deliver the defendant his stock of goods described in plaintiff's petition and procure for the defendant a valid lease contract on said filling station, beginning on December 18th and ending on or about fourteen months from said date, at a monthly rental of $125 per month, the defendant would pay to the plaintiff $921—$500 for his procurement of said lease contract, and $421 for the stock of goods, to be paid on or before thirty days after date; that the transactions between the parties were one contract and the provisions for the procurement of the lease were mutually dependent one upon the other. That the defendant would not have purchased the stock of goods without first obtaining a valid lease contract, and he would not have purchased the lease contract without having purchased the stock of goods.
The defendant's answer then specifically sets out in detail the transactions between the parties, and alleged that the plaintiff represented that one T. E. May was authorized and had the power to give a valid lease contract to the defendant on the premises, and that said written contract tendered to the defendant was a valid subsisting lease and was a good lease to said filling station; that the defendant relied on said representations and accepted said lease and stock of goods, believing that said lease was, in fact, a valid lease as represented by the plaintiff, and that he relied on same and paid to plaintiff the cash payment of $500. That at the time the plaintiff made these representations, he knew they were untrue and knew that the lease in question was worthless, or, if he made them without knowledge of their falsity, they were made for the purpose of inducing the defendant to accept same and to part with his $500; further, the defendant pleads the fact that the contract was of no value whatever. That shortly after said stock of goods was delivered to the defendant, he learned from the owner of said premises of the invalidity of said lease contract and was told by the owner that he would have to surrender the same to him, and, within two months after, defendant went into possession of said filling station.
Defendant prays that he have judgment against the plaintiff for $500, which said judgment shall be set off against any judgment that the plaintiff might recover against him, and for further relief, etc.
The plaintiff filed his supplemental petition in reply to defendant's answer, consisting of a general exception and general denial.
The defendant insists that the contract as pleaded by plaintiff was not the contract which he proved; that the allegata and probata did not correspond and for that reason the plaintiff should not have been allowed to recover.
We concede the rule to be that the pleading and proof must correspond, and that proof offered in the trial of the case must be supported by proper pleading. The defendant having raised the question that the contract as pleaded by the plaintiff was not the contract actually entered into between the parties, and having pleaded the contract which he claims was entered into and the plaintiff having joined issue with such pleading by his general denial, the question presented to us is: Can the plaintiff not only rely on his own pleading, but is he also permitted to rely upon the pleading of such facts in issue by the defendant? We think he can.
Where a cause of action is defectively stated in the...
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...fact as to waiver. Anderson v. Poulos, supra, and cases cited therein; Blackburn v. Manning, 307 S.W.2d 347, Tex.Civ.App.1957; Barton v. Flanagan, 25 S.W.2d 947, Tex.Civ.App.1930, err. dism.; Theophilakos v. Costello, 54 S.W.2d 203, Tex.Civ.App.1932; Nardis Sportswear v. Simmons, 147 Tex. 6......
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