Dueitt v. Barrow, 49
| Citation | 384 S.W.2d 214 |
| Decision Date | 12 November 1964 |
| Docket Number | No. 49,49 |
| Parties | J. P. DUEITT, Appellant, v. E. BARROW, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
John M. Robinson, Houston, for appellant.
Ernest Coker, Jr., of Coker & Coker, David Crews, Conroe, for appellee.
E. Barrow, appellee, a paving contractor, recovered judgment against J. P. Dueitt for the balance due on an oral contract for personal services rendered, labor done and materials furnished in the amount of $1373.62, and for $769.88 for additional extra work, plus $600.00 attorney's fees.
Dispute arose over the exact amount due and owing to the appellee contractor by appellant. The appellant does not contest on appeal the correctness of the trial court's award of $1373.62, being the balance due under the original oral contract for paving work. The appellant predicates his appeal on two points, the first being that the trial court erred in awarding judgment for the sum of $769.88 for additional extra work because such sum was awarded on a theory not supported or raised by the appellee's pleadings.
The trial court found that the parties entered into a subsequent oral contract whereby the appellee contractor would furnish the appellant additional extra services, labor and material; that such services, labor and material were, in fact, furnished; that there is due and owing to appellee contractor the sum of $769.88 for the additional extra work; and that such amount is the fair and reasonable market value for the same. Appellant contends that the appellee contractor plead an open account for the extra work and that such pleading cannot support a judgment for extra work based on an oral contract.
A pleading which sets forth a claim for relief shall contain a statement of the cause of action, shall give sufficient notice of the claim involved and must contain a demand for judgment for the relief to which the party deems himself entitled. Rule 47, Texas Rules of Civil Procedure. All pleadings shall be construed so as to do substantial justice. A variance between the pleading and the proof must be substantial, misleading and prejudicial to be fatal. Rule 45, T.R.C.P.; Glen Falls Insurance Co. v. Vetrano, C.C.A., n. w. h., 347 S.W.2d 769, 1961. Any variance in the pleadings and proof must be called to the attention of the trial court by objection or motion to strike, or it will be waived. Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173 (C.C.A.1962, Ref. n. r. e.).
Appellee contractor plead that he furnished additional services, labor and material to the appellant upon an open account at the special instance and request of the appellant and then proceeded to itemize the labor, materials and services rendered. Appellee contractor testified during the trial, without objection, that the appellant requested him to do the extra work and agreed to pay for it, and then testified as to the value of such services. He did not rely on the verified account for the proof of the value of the labor done or materials furnished. We hold that the appellee's pleadings and his proof were sufficient to apprise the appellant of the nature and theory of the plaintiff's cause of action. Appellant's first point is overruled.
Appellant, in his second point, contends that the trial court erred in awarding attorney fees of $600.00 in that the judgment was based on oral contracts which did not provide for attorney fees. Article 2226, Vernon's Ann.Tex.St., provides that:
'Any person having a valid claim against a person * * * for personal services rendered labor done, material furnished, * * * or suits founded upon a sworn account or accounts, may present the same to such person * * *; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person * * *, he may also recover, in addition to his claim and cost, a reasonable...
To continue reading
Request your trial
-
Inwood North Homeowners' Ass'n, Inc. v. Meier
...Corp., 554 S.W.2d 183 (Tex.1977); Rule 45, Tex.R.Civ.P., and all pleadings should be construed to do substantial justice, Dueitt v. Barrow, 384 S.W.2d 214, 215 (Tex.Civ.App.1964, no writ), rev'd on other grounds, 453 S.W.2d 814, 821 (Tex.1970); Glens Falls Insurance Co. v. Vetrano, 347 S.W.......
-
G & W Marine, Inc. v. Morris, 7278
...Corpus Christi, 1965, error ref., n.r.e.)) which was approved in Tenneco. He also relies heavily upon another case (Dueitt v. Barrow, 384 S.W.2d 214 (Tex.Civ.App., Corpus Christi, 1964, no writ), which was expressly disapproved in Defendant, on the other hand, contending that plaintiff soug......
-
Tenneco Oil Co. v. Padre Drilling Co.
...Christi 1966, no writ); H. B. Zachry Co. v. Ceco Steel Products Corp., 404 S.W.2d 113 (Tex.Civ.App.--Eastland 1966, no writ). Dueitt v. Barrow, 384 S.W.2d 214 (Tex.Civ.App.--Corpus Christi 1964, no writ); Wyche v. Wichita Engineering Company, 374 S.W.2d 728 (Tex.Civ.App.--Dallas 1964, no wr......
-
Page v. Superior Stone Products, Inc.
...fees where the action is based upon a contract to furnish material is within the scope of Article 2226. Dueitt v. Barrow, Tex.Civ.App., Corpus Christi, 384 S.W.2d 214 (no writ). Ready mixed concrete supplied to a highway paving job as in this case is material furnished as contemplated under......