Day v. Van Horn Trading Co.

• Decision Date: 12 January 1916
• Docket Number: (No. 5557.)
• Citation: 183 S.W. 85
• Parties: DAY et al. v. VAN HORN TRADING CO.
• Court: Texas Court of Appeals

183 S.W. 85

DAY et al. v. VAN HORN TRADING CO.

(No. 5557.)

Court of Civil Appeals of Texas. Austin.

January 12, 1916.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by the Van Horn Trading Company against J. R. Day and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Hill, Lee & Hill and Thomas & McCarty, all of San Angelo, for appellants. Joe Irby, of Van Horn, and Blanks, Collins & Jackson, of San Angelo, for appellee.

RICE, J.

It appears from the evidence that in 1910 J. R. Day and Levi Anderson, as owners of the Plateau Valley Land Company, employed Geo. E. Darsey, a mechanic, to erect certain houses upon said town site, and to do other work in connection therewith. In pursuance of said employment Darsey erected the houses, as well as performed other services. Subsequent thereto he transferred his claim therefor to the Van Horn Trading Company, and it brought this suit against Day and Anderson, as well as Geo. E. Darsey, to enforce the payment of such claim. Appellants Day and Anderson answered by general demurrer and special exceptions, which were overruled, and admitted that they had employed Darsey to build the houses, agreeing to pay him therefor at the rate of $3.50 per day, but denied that they agreed to pay him the amounts as alleged in paragraph 3 of the petition, and specifically denied several of the items set out in the account attached to the petition, but admitted owing him the sum of $219.65. There were other pleadings filed by both parties, which will be hereafter noticed. There was a jury trial on special issues, which resulted in a verdict and judgment in behalf of appellee, from which appellants Day and Anderson alone have appealed.

The petition, among other things, in paragraph 3, alleges that appellants, as owners and promoters of the Plateau Valley Land Company, contracted with defendant Darsey for the erection of seven houses in the town of Plateau, Tex., and to do certain other work in, on, and about the town site of Plateau, Tex., as a mechanic. A special exception was addressed to that part of said paragraph wherein it undertakes to allege an agreement on the part of appellants to pay Darsey for certain work in, on, and about the town site of Plateau, Tex., for the reason that said allegation was not definite enough to enable defendants to prepare their defense, or to put them upon notice of the things and matters expected to be proved as constituting "certain other work." This demurrer was overruled, to which appellants excepted. In this the court erred. The facts constituting plaintiff's cause of action should be set forth with such precision, clearness, and certainty as to apprise the opposite party of what he will be called upon to answer. This the petition fails to do, and was subject to the demurrer. See Vernon's Sayles' Civ. Stats. art. 1827; Mims v. Mitchell, 1 Tex. 446; Wright v. Wright, 3 Tex. 168; Caldwell v. Haley, 3 Tex. 318; City of San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 756; Texas Cent. Ry. Co. v. Hannay-Frerichs & Co., 130 S. W. 250, 255, 256; Mayton v. T. & P. Ry. Co., 63 Tex. 77, 51 Am. Rep. 637; Ware v. Shafer, 88 Tex. 44, 29 S. W. 756; Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50; Michie's Tex. Civ. Dig. vol. 13, pages 1085, 1086; Townes Texas Pleading (old edition) 278-280, and cases cited.

Attached to plaintiff's petition was a verified account, which was offered in evidence, containing specific items other than those set forth in the petition, among them an item for wages for certain work claimed to have been performed by Chesley, Caswell, Cyril, and Cecil Darsey, sons of Geo. E. Darsey, as well as other items of expense, denominated as follows:

"Sundry expenses, over bill, meals provided at opening, lodging provided at opening and amount paid Ray Lavell."

Appellants objected to the introduction of said account on the ground that the pleading contained no allegation authorizing recovery therefor, and that such items were too indefinite and uncertain, and this forms the basis of the second and third assignments of error. We think the court erred in failing to exclude this evidence on appellants' objection. It tended to establish a different contract from the one sued upon, and was therefore inadmissible. See Loudon v. Robertson, 54 S. W. 783; Bagley v. Brack, 154 S. W. 247; Stuart v. Calahan, 142 S. W. 60; Kildow v. Irick, 11 Tex. Civ. App. 615, 33 S. W. 314; Jefferson Cotton Oil Co. v. Pridgen, 172 S. W. 739, point 10.

We likewise sustain the fourth assignment of error, presenting the same question in a different form.

Appellants requested, and the court refused to give, a special charge submitting to the jury the question as to whether or not the Van Horn Trading Company was the owner of the account sued upon herein, and such failure is made the basis of the fifth assignment of error. In our opinion there was no error in the action of the court complained of. Appellee alleged in its petition that the account sued on was sold and transferred to it for a valuable consideration. Darsey testified that he sold the account to plaintiff for $900. The written transfer was likewise introduced in evidence. Darsey was made a party defendant to the suit. There was therefore no...