Smith v. Patterson
Decision Date | 05 May 1927 |
Docket Number | (No. 8991.) |
Citation | 294 S.W. 984 |
Parties | SMITH v. PATTERSON. |
Court | Texas Court of Appeals |
Appeal from District Court, Brazoria County; W. S. Sproles, Special Judge.
Action by W. E. Patterson against T. L. Smith. Judgment for plaintiff, and defendant appeals. Affirmed.
A. E. & Carlos B. Masterson, of Angleton, for appellant.
Wilson & Follett, of Angleton, for appellee.
This was a controversy over a verbal contract between them for the drilling of some water wells for appellant by appellee, under which the former was to furnish materials and the latter do the work at a stipulated price per foot; on a trial of it before the court, sitting without a jury, the appellee was awarded damages in the sum of $323.90 as for appellant's failure to furnish suitable material, as agreed, thereby preventing the appellee from performing the contract upon his part.
The appeal protests against the judgment on a number of grounds; the main ones being: (1) That appellant's general and special exceptions to his opponent's pleadings, as well as his plea of two years' limitation against the cause of action, should have been sustained; (2) that the court erred both in permitting Luther Patterson to testify that he had a contract with appellant to drill two artesian and two pump wells, or one artesian and three pump wells, and in letting the appellee himself detail conversations concerning such contract between himself and Luther Patterson, held between them in the absence of appellant; (3) the appellee's contract being one to furnish and deliver a completed artesian well, flowing artesian water, and he having failed to do so, he was not entitled over objection to testify, either that the water therefrom would have been flowing artesian water suitable for both people and stock, had the well been completed, or as to what caused his failure to complete it; (4) the court erred in not holding under the facts that the appellee accepted the pipe furnished him by appellant for the drilling of a completed artesian well, and then breached his contract by not only failing to complete and deliver such a well, but in losing the pipe, thereby terminating all liability of appellant to him.
In our opinion none of these contentions can be sustained. We here quote this much from appellee's brief as correctly reflecting what the record shows, as well as the properly inferable legal conclusions therefrom:
Among others, appellee cites in support of his right to the recovery, in the circumstances thus outlined, these authorities: Hahl v. Deutsch, 42 Tex. Civ. App. 1, 94 S. W. 443; Hoppes v. Williams (Tex. Civ. App.) 213 S. W. 328; Holiday Oil Co. v. Smith, 100 Okl. 172, 228 P. 775; McPherson v. San Joaquin County, 6 Cal. Unrep. 257, 56 P. 802; McConnell v. Corona; 149 Cal. 60, 85 P. 929, 8 L. R. A. (N. S.) 1171; Holiday v. Smith, 100 Okl. 172, 228 P. 775; Mitchell v. Boyce (Tex. Civ. App.) 120 S. W. 1016; Thompson v. Brown, 106 Iowa, 367, 76 N. W. 819; Cunningham v. Daves (Tex. Civ. App.) 141 S. W. 808.
We agree that they sustain the adjudication. The exceptions to the amended petition were all properly overruled, because it fully set out the appellee's cause of action as resting mainly upon averments to the effect that he contracted to drill specified wells —that is, one or two...
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