Waco Cement Stone Works v. Smith

• Decision Date: 17 December 1913
• Citation: 162 S.W. 1158
• Parties: WACO CEMENT STONE WORKS v. SMITH.
• Court: Texas Court of Appeals

162 S.W. 1158

WACO CEMENT STONE WORKS v. SMITH.

Court of Civil Appeals of Texas. Austin.

December 17, 1913.

Rehearing Denied January 28, 1914.

Error to District Court, McLennan County; Tom L. McCullough, Judge.

Action by the Waco Cement Stone Works against N. K. Smith, in which defendant filed a counterclaim. Judgment for defendant on his counterclaim, and plaintiff brings error. Reversed and remanded.

Sleeper, Boynton & Kendall, of Waco, for plaintiff in error. Scott & Ross, of Waco, for defendant in error.

RICE, J.

Plaintiff in error sued defendant in error for a balance of $150, alleged to be due it on a contract to furnish certain cement stone, to be used in finishing his residence and garage in Waco, in accordance with the plans and specifications of M. W. Scott, as well as for extra material furnished to him, and used thereon, but not specified in said contract, amounting to $642.15, aggregating the sum of $792.15.

Defendant, after admitting that he owed plaintiff on the contract and for extras a balance of $546.15, resisted payment thereof, on the ground that said stone was not in accordance with the contract, but was inferior in quality, grade, and finish, whereby he was damaged to the extent of $2,000; and likewise pleaded that certain of said material was not of the size and dimensions required, for which reason, he was compelled to do extra work and labor thereon to conform same to proper requirements, to his injury in the further sum of $250, both of which amounts, less his admitted indebtedness, he pleaded in set-off and as a counterclaim.

A jury trial resulted in a verdict for defendant in the sum of $1,000 damages, upon which judgment was entered, to the effect that plaintiff take nothing, and that defendant recover of plaintiff said amount. There was no disposition, however, by the verdict of plaintiff's cause of action, and it was urged in the motion for new trial that the verdict was not responsive to the issues, and failed to dispose thereof. It is also insisted that the court failed to give in charge the correct measure of damages, and these form the basis of the first and second assignments of error.

The court, in its charge, did not submit any issue under which the jury could have found in favor of defendant against plaintiff for any sum whatever, but were merely directed to set off such damages as they might find defendant sustained by reason of inferior stone having been furnished to him by plaintiff against such sum as they might find for plaintiff under the first section of the charge. The verdict must be responsive to the issues. Marsalis v. Patton, 83 Tex. 521, 18 S. W. 1070; Michon v. Ayalla, 84 Tex. 685, 19 S. W. 878; Railway Co. v. Mackney, 83 Tex. 410, 18 S. W. 949. Failure to find a material issue is ground for reversal. Bledsoe v. Wills, 22 Tex. 651; May v. Taylor, 22 Tex. 349; Dodd v. Gaines, 82 Tex. 429, 18 S. W. 618; Moore v. Moore, 67 Tex. 294, 3 S. W. 284. The verdict in this case being defective, the court should have declined to receive it, and sent the jury back, calling their attention thereto, directing them to correct it. Article 1327, Sayles' Rev. Civ. Stat.; Roche v. Dale, 43 Tex. Civ. App. 287, 95 S. W. 1101. And, having failed to do this, it should have set the verdict aside on motion for new trial when asked so to do. The necessity for making the judgment conform to the pleadings seems to have occurred to the court, because the judgment recites that the plaintiff take nothing, as though the jury had found against it on the issue raised by its pleadings, when in fact the jury had not done so. This cannot be legally done, because there was in fact no verdict to sustain such recital. The judgment must not only conform to the pleadings (Hall v. Jackson, 3 Tex. 305; Pinchain v. Collard, 13 Tex. 333) but likewise to the nature of the case proved (Darden v. Matthews, 22 Tex. 321), and also to the verdict itself (Claiborne v. Tanner, 18 Tex. 68; Jackson v. State, 21 Tex. 668; Bledsoe v. Wills, supra; McConkey v. Henderson, 24 Tex. 212; Longcope v. Bruce, 44 Tex. 434; Handel v. Elliott, 60 Tex. 145). In Carter v. Bolin, ...