Suderman-Dolson Co. v. Hope

• Decision Date: 31 March 1909
• Citation: 118 S.W. 216
• Parties: SUDERMAN-DOLSON CO. v. HOPE.
• Court: Texas Court of Appeals

118 S.W. 216

SUDERMAN-DOLSON CO. v. HOPE.

Court of Civil Appeals of Texas.

March 31, 1909.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by L. Hope against the Suderman-Dolson Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hogg, Gill & Jones, for appellant. R. W. Franklin, for appellee.

FLY, J.

This is a suit for $751.90, instituted by appellee against appellant, alleged to be due for work done by him and his partner in the construction of a portion of the roadbed of a railroad and in clearing up the right of way. It was alleged that the work was done under a contract made with the duly authorized agent of the company, and, in the alternative, that the work was done at the solicitation of said agent, and with his knowledge and consent. Appellant alleged that they had no contract with appellee, but that he and his partner had done the work as subcontractors under Delery & Co., with whom appellant had contracted for the work to be performed. The jury returned a verdict for appellee for $752.90, with 6 per cent. interest from January 1, 1907. The evidence developed that Delery & Co. had a contract of construction with appellant which they gave up, and appellant, through its agent, Waldo, contracted with appellee and one Epley to perform certain work on the right of way of the railway company, and the work was performed and accepted by appellant, and there was a balance due on said work of $752.90 as found by the jury, which appellant refused to pay. Appellee was the owner of the claim against appellant.

The first assignment of error complains of the charge of the court because it assumed that Delery & Co. had forsaken their contract. All of the evidence, even that of Waldo, shows that Delery quit the job, and, in the language of the charge, "gave up the contract." The court did not assume that appellant assented thereto, but the jury was informed that appellee had so alleged. In this connection it may be stated that appellant has failed to make the statement required by the rules to follow each assignment of error. There is no statement of the substance of the evidence, but a mere reference to "statement of facts, p. 21 et seq." and "statement of facts, p. 16."

The second assignment of error is overruled. The charge of which complaint is made does not assume that Waldo, appellant's agent, made a contract with Hope & Epley. The charge is quite obscure, but we cannot see how it could have...