Randolph Junior College v. Isaacks, 1733.

• Citation: 113 S.W.2d 628
• Decision Date: 07 January 1938
• Docket Number: No. 1733.,1733.
• Parties: RANDOLPH JUNIOR COLLEGE v. ISAACKS.
• Court: Court of Appeals of Texas

Page 628

113 S.W.2d 628

RANDOLPH JUNIOR COLLEGE v. ISAACKS.

No. 1733.

Court of Civil Appeals of Texas. Eastland.

January 7, 1938.

Rehearing Denied February 4, 1938.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Action by E. Buford Isaacks against Randolph Junior College to recover unpaid salary as a teacher. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. D. Sartin, of Wichita Falls, and Eugene Lankford, of Cisco, for appellant.

S. J. Isaacks, of El Paso, for appellee.

FUNDERBURK, Justice.

E. Buford Isaacks sued Randolph Junior College, a corporation, for an unpaid balance of salary as a teacher, claimed to be due under a written contract of employment, or, in the alternative, upon an oral contract of such employment. A nonjury trial resulted in a judgment for the plaintiff awarding recovery of $503. To show the basis of the judgment the trial judge, in response to proper request, filed conclusions of fact and law. The defendant has appealed.

Appellant's assignments of error embrace five grounds upon which it is sought to have the judgment reversed. These five grounds consist of the actions of the court (1) in overruling a motion for continuance, or postponement; (2) in overruling special exceptions to plaintiff's pleading; (3) in "holding that the plaintiff entered into a contract with the defendant"; (4) in "holding plaintiff has a valid contract for $1500, unconditionally"; and (5) in "holding that the defendant was obligated [to pay] $503 to plaintiff."

The contention that the court erred in overruling the motion for continuance cannot be sustained for, perhaps, more than one good reason, but if for no other, because it is not supported by the record. The record shows that such a motion was made, but there appears no order overruling it; and the action of the court is not presented by any bill of exception. The motion was filed September 26, 1936, and the judgment recites that the case came on to be heard on the 3d day of October, 1936, thus apparently showing affirmatively that the motion was not overruled. The failure, however, of the record to show affirmatively that it was overruled renders unnecessary any further inquiry into the correctness of the court's action upon the motion.

The special exceptions to the plaintiff's pleadings, the overruling of which constitutes the ground of error alleged in the second assignment, is as to one exception not supported by the record, and, as to another, appears to be without merit. It is stated in the brief that defendants by their first amended answer "specially excepted to plaintiff's petition because the petition did not state whether the alleged contract on which plaintiff was suing was a written contract, and if a written contract he did not attach a copy of same, nor did he state the substance of said alleged contract." The amended pleading did allege that the contract was a written contract, thereby meeting the first objection. In the alternative it was alleged that the contract was oral. In a suit upon a contract, a petition is not, we think, subject to exception, general or special, solely for the reason that the pleader fails to attach a copy of the contract as an exhibit to the pleading. This would seem to follow as a proper, if not a necessary, deduction from the certainly well-established proposition that it is not necessary in such a suit to allege the contract in haec verba. "It is not necessary to set out the...