Carter v. Olive
| Citation | 128 S.W. 478 |
| Parties | CARTER et al. v. OLIVE. |
| Decision Date | 04 May 1910 |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; A. E. Amerman, Judge.
Action by William Olive against O. M. Carter and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Love & Channell, for appellants.
The petition alleged a contract with appellee to pay him for medical services rendered to a child of one of the defendants, who was injured by being run over by an automobile. The petition did not allege a breach of the contract in the failure to pay for the services. Consequently under the following authorities the petition was subject to a general demurrer. A general demurrer to the petition was overruled, which was error, requiring the judgment to be reversed. The first assignment of error is therefore sustained. Grant v. Whittlesey, 42 Tex. 320; Brackett v. Devine, 25 Tex. Supp. 194; Whitaker v. Record, 25 Tex. Supp. 382.
The case was tried and a verdict was rendered for $750 in plaintiff's favor. The second assignment of error contends that there was no evidence that any sum is due from defendants, no evidence of any demand on them to pay, and no evidence that they had ever refused to pay. We ascertain that there was some testimony of the value of the service. It is manifest that the trial judge based his ruling on the demurrer upon the idea that it was not necessary to allege the breach of the alleged contract, but that payment was a matter to be pleaded by the defendants. If this was right, it was unnecessary for plaintiff to make proof of nonpayment. The failure of plaintiff to make such proof was referable to the views of the judge on the demurrer, and in these circumstances it would be inadmissible for us to render judgment on the evidence.
Reversed and remanded.
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Davis v. White
...Supp. 195; Grant v. Whittlesey, 42 Tex. 320; Cotton v. Thompson, 159 S. W. 455; Merchants', etc., v. Williams, 181 S. W. 859; Carter v. Olive, 128 S. W. 478. In Parr v. Nolen, supra, Chief Justice Moore remarked that these rulings appeared somewhat technical, but followed same. This court c......
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Pierson v. Pierson, 5011.
...not be necessary to prove it. It could hardly be seriously contended that recovery could be had without such proof. Carter et al. v. Olive, Tex.Civ.App., 128 S.W. 478; Beck v. Nelson et al., Tex.Civ.App., 17 S.W.2d 144, and authorities there The special exception to the petition and objecti......
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...272 S. W. 296; Hart-Parr Co. v. Paine (Tex. Civ. App.) 199 S. W. 822; Cotton v. Thompson (Tex. Civ. App.) 159 S. W. 455; Carter v. Olive (Tex. Civ. App.) 128 S. W. 478; Brackett v. Devine, 25 Tex. Supp. Plaintiffs were not entitled to a foreclosure of their equitable liens without an allega......