McAlister v. Bivings
Decision Date | 13 June 1930 |
Docket Number | No. 711.,711. |
Citation | 29 S.W.2d 853 |
Parties | McALISTER v. BIVINGS et al. |
Court | Texas Court of Appeals |
Appeal from Howard County Court; H. R. Dabenport, Judge.
Suit by Charles K. Bivings and another against O. H. McAlister. Judgment for plaintiffs, and defendant appeals.
Reversed and remanded.
Thomas & Coffee, of Big Spring, for appellant.
Wilburn Barcus, of Big Spring, for appellees.
This is a suit by Chas. K. Bivings and James Barcus against O. H. McAlister to recover the sum of $355.50. The amount sued for was alleged to represent reasonable and proper charges for medical and hospital services rendered by plaintiffs as physicians and owners of a hospital to one W. T. Carroll, who had suffered an accidental injury, and who was an employee of McAlister. The basis of the claim of defendant's liability was an alleged contract by which defendant employed plaintiffs "as physicians to take care of said W. T. Carroll and give him all the medical and hospital attention needed and necessary," upon the promise and agreement of said defendant "* * * that he, defendant, would personally pay all of the expenses incidental thereto, including their services as physicians and hospital services." Plaintiffs' claim was also stated in the form of a verified account. The defendant answered by exceptions, general denial, and sworn denial of the justness of the account. The judgment was for plaintiffs for the sum of $325.50. Defendant has appealed.
The court, at defendant's request, filed findings of fact and conclusions of law. Among other things not material to be mentioned, the court found that:
The trial court concluded that the plaintiffs were entitled to judgment, notwithstanding his finding that "testimony was introduced by the plaintiffs which showed it was clearly within the statutes of fraud, and was objected to by the defendant." This conclusion was based upon the theory that the defendant waived the objection by thereafter eliciting the same testimony regarding the terms of the contract from the plaintiffs as witnesses.
The first ground urged for the reversal of the judgment is based upon an assignment that the court erred in permitting the plaintiffs to testify to the terms of an agreement to the effect that the defendant was to pay for medical and hospital services if Cosden Oil & Gas Company did not. If the contract testified to by the plaintiffs was the same as the contract alleged in their pleadings, except that that it was shown by the testimony to be oral, the objection would be good unless, as contended by appellees, it was waived. But, manifestly plaintiffs testified to a very different contract than the one alleged, as shown in the findings of fact quoted above. By plaintiffs' pleading the defendant was charged upon a contract...
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Columbus Mut. Life Ins. Co. v. Oldham, 1769.
...obligation within the operation of the principle that a plaintiff can recover only upon proof of the contract alleged. McAlister v. Bivings, Tex.Civ.App., 29 S.W.2d 853. In their pleadings, the appellees alleged that the "loss did not occur, nor was it the result of, a violation of any of t......
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West Texas Utilities Company v. Pirtle
...contract essentially different from that alleged, he must fail.' See also Blum v. Sams, Tex.Civ.App., 250 S.W. 760; McAlister v. Bivings, Tex.Civ.App., 29 S.W.2d 853, and 13 Tex.Jur.2d, Section 399, page 679--680. The contract attached to plaintiff's petition and introduced in evidence show......
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Bowman v. Grimes, 2178.
...the contract with the alleged provisions was made. "Plaintiff could only recover upon proof of the contract alleged." McAlister v. Bivings, Tex.Civ.App., 29 S.W.2d 853, and authorities While the entire issue included not only the fact that a contract was made, but also the alleged provision......