McAfee v. Robertson

• Decision Date: 01 January 1874
• Citation: 41 Tex. 355
• Parties: WM. T. MCAFEE v. J. S. ROBERTSON.
• Court: Texas Supreme Court

41 Tex. 355

WM. T. MCAFEE

v.J. S. ROBERTSON.

Supreme Court of Texas.

1874.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

In July, 1871, McAfee sued Robertson for work and labor done at his wife's request, setting out the following items:

+-----------------------------------------------------------------------------+
                ¦5,500 new rails                                                        ¦$55  ¦
                ¦                                                                       ¦00   ¦
                +-----------------------------------------------------------------------+-----¦
                ¦18 days' hauling with wagon and two yoke of oxen, and two hands, $5 per¦120  ¦
                ¦day                                                                    ¦00   ¦
                +-----------------------------------------------------------------------+-----¦
                ¦Cash, October, 1866                                                    ¦5 00 ¦
                +-----------------------------------------------------------------------+-----¦
                ¦1,900 panels of fence reset, 50 cents per hundred rails for taking down¦95 00¦
                ¦and putting up                                                         ¦     ¦
                +-----------------------------------------------------------------------------+
                

The petition was sworn to by plaintiff, and service had by publication.

Defendant by attorney pleaded a general denial.

By amendment, plaintiff alleged that the work and labor, &c., was done during the protracted absence of the husband, and that it was done upon the homestead, and was necessary to the profitable cultivation and use of the land, &c.

The plaintiff testified, that in the absence of defendant, his wife agreed with witness that he should do the work for which suit was brought. That the work was done, and its value as stated in the petition; that on Robertson's return he said “it was all right,” and promised to settle it in a few days.

The court instructed the jury: “If the plaintiff contracted with the wife of the defendant for the work and labor as stated in the petition, and if the defendant ratified the contract made by the plaintiff and the wife of the defendant, then you will find for the plaintiff the amount said work and labor so ratified has been proved to be worth, and interest.” * *

“Before you can find for the plaintiff, you must believe from the evidence that Robertson ratified what had been done by his wife, and was willing to be bound by said contract.”

“If the evidence does not show that Robertson agreed to be bound by said contract, you must find for the defendant.”

Verdict and judgment for the defendant.

Plaintiff moved for a new trial for the reasons--

1. Because the jury decided against the law and evidence, and--

2d. Because the jury decided against the charge of the court.

The motion was overruled, and appeal prosecuted to this court, the errors assigned being (1) the action of the court overruling the motion for new trial; (2) the court erred in its charge to the jury; and (3) the jury found contrary to the law and evidence.Steadman & Bagby, for appellant, cited Blanchet v. Dugat, 5 Tex., 507;Wright v. Hays, 10 Tex., 130;Thomas v. Chance, 11 Tex., 634;Cheek v. Bellows, 17 Tex., 613.

James H. Jones and Martin Casey, for appellee.

MOORE, ASSOCIATE JUSTICE.

The judgment in this case must be reversed for each of the three grounds presented in the assignment of errors, viz: First, the jury decided contrary to the law and evidence; second, the court erred in not granting a new trial to plaintiff, and in overruling his motion for a new trial; third, the court erred in its charge to the jury, &c.

All of the allegations of the petition are fully and clearly proved by the testimony...