McDaniel v. Turner

• Court: Texas Court of Appeals
• Writing for the Court: McClendon
• Citation: McDaniel v. Turner, 269 S.W. 496 (Tex. App. 1924)
• Decision Date: 17 December 1924
• Docket Number: (No. 6827.)
• Parties: McDANIEL et al. v. TURNER.

269 S.W. 496

McDANIEL et al. v. TURNER.

(No. 6827.)

Court of Civil Appeals of Texas. Austin.

December 17, 1924.

Rehearing Denied January 14, 1925.

Appeal from Cooke County Court; Geo. W. Dayton, Judge.

Action by W. S. Turner against Lee McDaniel and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Culp, Culp & Culp, of Gainesville for appellants.

Granville Jones and J. T. Adams, both of Gainesville, for appellee.

McCLENDON, C. J.

This suit was by W. S. Turner, appellee, against Lee McDaniel and S. F. Zacherias, appellants, to recover $856.43 for meals and beds furnished to members of certain baseball teams, under an alleged contract between appellants and appellee.

The cause was tried to the court without a jury, and judgment was rendered for appellee for $757.06 and costs. The appeal is from this judgment.

Appellants have briefed the case under 14 assignments of error, supported by 8 propositions. The first 13 assignments complain of the action of the trial court in overruling special exceptions, to plaintiff's pleadings and the fourteenth complains of the failure of the trial court to file findings of fact and conclusions of law.

With reference to the fourteenth assignment, it is only necessary to state that it was not filed in the trial court, and appears only in appellants' brief. We need not cite authorities supporting the general proposition that Courts of Civil Appeals cannot review a ruling of the trial court, not involving fundamental error, where no assignment of error complaining of such ruling has been filed in the trial court. In Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734, the filing of an assignment of error was held to be jurisdictional. This rule applies to matters which arise subsequently to overruling a motion for new trial as well as to those arising prior thereto; in the former instance the proper practice being to file a separate assignment complaining of such ruling. Overton v. Colored K. of P. (Tex. Civ. App.) 163 S. W. 1053; Dees v. Thompson (Tex. Civ. App.) 166 S. W. 56; Werner v. Needham (Tex. Civ. App.) 201 S. W. 213.

The special exceptions referred to in the first 10 and thirteenth assignments question the sufficiency of plaintiff's pleadings, in that they fail to state the names of the parties to whom the meals and lodgings were furnished, the rates at which furnished, the amounts due and payable, and the times when same were furnished or due; and that, where the names of the parties are given, the amount furnished each is not stated. These exceptions were directed against the petition, exhibits thereto, and supplemental petition. It is not necessary to set out each of these exceptions, as they all in one form or another urge that the pleadings are too vague, indefinite, and uncertain in one or more of the particulars named.

The amended petition alleged that defendants were managers of "the Gainesville Baseball Team," and as such contracted with various parties, and as part of the compensation agreed to pay their board and room rent while so employed.

"That said defendants contracted with this plaintiff to furnish board and rooms for their said employees, and agreed to pay this plaintiff 37½ cents per meal for each meal furnished to the employees of said defendants, and also agreed to pay this plaintiff 75 cents per day for each one of said employees who was furnished a bed."

That in pursuance of such contract plaintiff, between June 16, 1922, and September 5, 1922, furnished meals and beds for various and sundry parties, aggregating $856.43; that the plaintiff did not keep a record showing the name of each party, and in some instances did not even know their names, and for that reason could not give their names accurately and definitely, but that defendants had such record. Two exhibits were attached to the petition. In the first was a statement by weeks for meals and lodgings, without specifying the number of meals and lodgings, and the second gave the names of 22 persons to whom meals and beds were furnished. Of some of these persons only the surname was given, and others the full name. With reference to these exhibits the petition alleged that it was impossible for plaintiff to state accurately the dates when said parties were at his place of business, with the exception of three of the parties named who were furnished three meals a day and one bed each for the whole of the time from June 16 to and including September 5, 1922, with the exception of one week when each of said parties was absent, and two of the parties named who were furnished three meals a day each day from July 25, 1922, to September 5, 1922. It was further alleged that 112 meals and 28...