Tabet Bros. Co. v. Higginbotham

• Citation: 170 S.W. 118
• Decision Date: 28 October 1914
• Docket Number: (No. 5339.)
• Parties: TABET BROS. CO. v. HIGGINBOTHAM.
• Court: Texas Court of Appeals

170 S.W. 118

TABET BROS. CO. v. HIGGINBOTHAM.

(No. 5339.)

Court of Civil Appeals of Texas. San Antonio.

October 28, 1914.

Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.

Action by A. H. Higginbotham against the Tabet Bros. Company. From the judgment, defendant appeals. Affirmed.

T. H. Ridgeway, of San Antonio, for appellant. Harry M. Rosenblum, C. C. Todd, and Carlos Bee, all of San Antonio, for appellee.

MOURSUND, J.

Appellee sued appellant company for $675 claimed to be due appellee by appellant as wages. On March 4, 1914, appellee filed his second amended original petition, in which he reasserted his cause of action and answered appellant's first amended original answer and cross-action, which had been filed on August 18, 1913. By appellant's cross-action items aggregating $864.05 were claimed to be due appellant by appellee. The case was submitted to the jury upon special issues, and the jury found that the appellant (defendant below) owed appellee (plaintiff below) $338.33, and that appellee owed appellant $236.80, whereupon judgment was rendered in favor of appellee for the difference, which was $101.53. Thereafter appellant filed a motion, praying for judgment in its favor upon the pleadings, undisputed evidence, and the verdict of the jury, and also filed a motion for new trial. Both motions were overruled.

The jury's finding, to the effect that appellant owed appellee $338.33, is not attacked, but it is contended that appellee should have been adjudged to owe appellant $375, thus leaving a balance in appellant's favor. The statement of facts shows that appellee admitted that he owed appellant $150 upon a note, upon which interest was claimed to be due to the amount of $13, as well as attorney's fees amounting to $16.30, and $50 for money advanced to appellee. As he denied all further indebtedness, it is evident that the above items were included in the amount found by the jury to be due by him to appellant, viz., $236.80. We, therefore, need not consider said items further.

Among the items pleaded in appellant's cross-action, there was one for $175, alleged to be due upon stated account, duly acknowledged by instrument in writing dated October 24, 1912, signed by appellee. The only denial of this pleading was contained in the said second amended original petition, and reads as follows:

"Plaintiff denies the allegations contained in the fifth paragraph of said answer of defendant and all the allegations contained in defendant's cross-action."

Appellant contends that this denial was not sufficient under chapter 127, Acts of 1913, (Vernon Sayles' Ann. Civ. St. 1914, arts. 1827-1829b), and that therefore he should be allowed said item of $175. This contention came too late. Appellant did not except to the answer, nor move for judgment upon the pleadings, but introduced evidence and let the issues be...