author: PLEASANTS, C. J.

text:
    DEFFERARI et al. v. CITY OF GALVESTON et al.
    (No. 7735.)

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1918.
    Rehearing Denied Jan. 16, 1919.)
    1. Appeal and Error &wkey;s733 — Assignments op Error — Generality.
    Assignments of error that judgment is contrary to evidence and law applicable to ease, that trial court erred in not granting plaintiff’s prayer for temporary injunction on case made, and that judgment is contrary to law and unsupported by evidence or any evidence, held too general to require consideration. >
    2. Municipal Corporations i&wkey;603 — Protection against Fire — Dilapidated Buildings — Nuisance.
    Where buildings of plaintiffs, landlord and tenant, were so dilapidated as to render them menace to public safety in their tendency to promote fires, and therefore were a public nuisance, city and officials under ordinance could lawfully remove them, after due notice to and hearing of plaintiffs.
    3. Municipal Corporations &wkey;>603 — Fire ■Nuisances — Validity op Ordinances.
    City ordinances, empowering mayor and other officials on due notice and hearing to remove buildings within fire limits of city which are in such condition of dilapidation as to be nuisance in tendency to promote fires, are valid.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Louisa Defferari and B. Varontes against the City of Galveston and others. From an order refusing to grant temporary injunction, plaintiffs appeal.
    Affirmed.
    Aubrey Fuller, of Galveston, for appellants.
    Mart H. Royston, of Galveston, for appel-lees.

      Writ of error denied by Supreme Court March 19, 1919.

   PLEASANTS, C. J.

Appellants, Mrs. Def-ferari and B. Varontes, brought this suit against appellees, the city of Galveston and the mayor and members of the board of commissioners of said city, for an injunction restraining them from taking down and removing certain buildings in the city of Galveston owned by appellants, and which had been declared a nuisance by said board and ordered removed, and for mandamus to compel said board to grant appellants permission to repair said buildings. This appeal is from an order of the district court refusing to grant a temporary injunction.

The facts upon which the application is based are in substance as follows:

The appellant Louisa Defferari is the owner of the premises situated on the northeast corner of Tremont and Winnie streets in the city of Galveston, and the buildings situated thereon are wooden buildings. Varontes is a tenant of one of these buildings. The premises are and have been for many years within the fire limits established by the ordinances of the city of Galveston.

On or about July 12, 1917, the mayor-president of the board of commissioners of the city of Galveston reported to the board of commissioners of the city of Galveston the dilapidated and unsanitary condition of the premises, and the matter was by the board of commissioners referred to the committee provided for in article 241 of the ordinances of the city of Galveston, and thereafter, on July 19, 1917, such committee reported to the board of commissioners that they had examined the premises, and after a thorough examination and inspection found them to be in a dilapidated and unsanitary condition and a nuisance to the public and a fire hazard, and that said buildings in their present condition constituted, in the opinion of the committee, a nuisance, and it was recommended that the same be taken down and removed from the premises or thoroughly repaired. Whereupon, the report being received by the board of commissioners, the secretary was directed to cite the owners to appear before the board of commissioners on July 26, 1917, to show cause, if any they could, why such buildings should not be removed and such nuisance abated.

In response to such notice so served the appellant, Louisa Defferari appeared before the board of commissioners by her agent, Frank Defferari, and requested an extension of time in which to have the buildings taken down, and the board of commissioners granted an extension of 90 days; and thereafter, on August 9,1917, the appellant, Louisa Defferari, acting through her agent, Frank Defferari, petitioned the board of commissioners for permission to repair said premises, which petition was by the board of commissioners refused, and thereafter, on October 25, 1917, the board of commissioners granted a further extension of time to appellant in which to remove said buildings.

Thereafter, on June 6,1918, it appearing to the board of commissioners that the appellant Louisa Defferari had failed and refused to remove said buildings and to abate said nuisance, the board of commissioners again considered said matter, and, it appearing to the board that the said buildings had not been removed or the nuisance abated, the board, having heard and considered the report of the inspector of said premises, and having read and considered the evidence as to the condition of the premises, and having fully considered the facts, reached the opinion that the buildings were dilapidated and were a fire hazard and a nuisance to the health of the public, and in their present condition constituted a nuisance, 'and that said buildings were frame buildings and within the fire limits of the city of Galveston, the mayor-president was directed to notify the owners of said buildings to remove the same within 7 days, and in the event of their refusal and failure so to do, the mayor-president was instructed to have said buildings taken down and removed, and said nuisance abated.

We find that the evidence before the board of commissioners and that adduced upon the trial was amply sufficient to sustain the finding that the buildings in question are in such dilapidated condition as render them a menace to the public safety in their tendency to cause and promote fires, and because of such condition they are a public nuisance. The hearing before the board of commissioners was upon due notice to appellants, and was conducted in all respects in accordance with the charter and ordinances of the city of Galveston.

The first three assignments of error, which are grouped and presented together in appellants’ brief, are as follows:

“First Assignment of Error.
“First ground of error as shown by the transcript: ‘The judgment of the court is contrary . to the evidence and the law applicable to the case.’
“Second Assignment of Error.
“The court erred in not granting appellants’ prayer for a temporary injunction, upon the case made.
“Third Assignment of Error.
“The judgment of the court entered herein on the 13th day of July, A. D. 1918, is contrary to law and unsupported by the evidence or any evidence in the case.”

These assignments are too general to require consideration; but, if this objection be waived, our findings of fact above stated are a sufficient answer to each of the propositions presented under said assignments.

Other assignments presented question tile validity of the charter and ordinances under which the board of commissioners acted in condemning the buildings as a public nuisance, on the ground that they are violative of the constitutional prohibition against depriving a citizen of property except by due course of the law of the land.

These identical questions were presented and passed upon by this court in the case of Grossman v. City of Galveston, 204 S. W. 128, adversely to appellants’ contention, and it is unnecessary for us to discuss them further in this opinion.

For the reasons stated in the opinion referred to, we hold that the charter and ordinances are valid.

We think the ruling of the trial court, refusing the temporary injunction, was correct, and should be affirmed.

Affirmed.


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    STATE NAT. BANK v. EAST COAST OIL CO.
    (No. 6130.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.
    Rehearing Denied Jan. 15, 1919.)
    1. Bills and Notes &wkey;129(3) — Sight Draft —Date of Maturity.
    The only difference between the date of maturity of a paper payable at sight and one payable on demand is that in the former it is a recognized custom to allow three days of grace.
    2. Bills and Notes &wkey;>348 — Sight Draft— Date of Maturity — Past Due.
    Sight draft purchased by plaintiff more than six months after its execution and delivery was “past due,” although it had not been presented to the drawee for payment.
    3. Bills and Notes i&wkey;351 — Overdue Draft —Rights of Purchaser.
    Where sight draft was overdue when purchased by plaintiff, it was subject to the defense of fraud which the drawer had against the payee named in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 582.
    Appeal from District Court, Bexar County ; J. T. Sluder, Judge.
    Suit by the State National Bank against the East Coast Oil Company and others. Plaintiff dismissed as to one of the unnamed defendants, and the other two unnamed defendants defaulted. From a judgment in its favor against the oil company, plaintiff appeals.
    Affirmed.
    J. L. Browne and A. J. Parker, both of San Antonio, for appellant.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, Ed. W. Smith, and C. R. Kennon, all of San Antonio, for appellee.

      writ of error denied by Supreme Court March 12, 1919.

   SWEARINGEN, J.

The statement of the nature and result of this suit and the issues presented by the petition and answer are accurately expressed in appellee’s brief:

“The State National Bank of San Antonio sued the East Coast Oil Company, as maker, and J. W. Barnes, James Segler, and C. H. Bown, as indorsers, of a bill or draft, which reads: ‘Good for $1,799.00 gold. Tampico, Mexico, June 30, 1915. At sight you will please pay to the order of J. W. Barnes the sum of one thousand seven hundred ninety-nine and @/ioo dollars, for value received, which you will charge with or without advice of yours truly. To O. B. Udell, Treasurer East Coast Oil Co., S. A., No. 171. Houston, Texas, U. S. A. East Coast Oil Co., S. A., T. R. Batte, Jr., Superintendent.’ Indorsed: ‘Pay to the order of James Segler. J. W. Barnes. James Segler. C. H. Bown.’
“Plaintiff pleaded that it purchased the draft in due course, for value, without notice, and before maturity.
“Defendant Oil Company answered that the draft was given by it to Barnes in consideration of 25,700 pesos Mexican currency bought by it of Barnes, subject to approval thereof as genuine by the Mexican authorities at Tam-pico, Mexico, where said transaction occurred, and for no other consideration; that the currency so bought was- not genuine but counterfeit, and that all of it (except 600 pesos) was, confiscated as counterfeit by the Mexican authorities at Tampico, and was a total loss; that there was fraud in the inception of the draft, and that the consideration therefor had failed, as stated; that Segler somehow obtained possession of the draft from Barnes while they were in jail together for dealing in counterfeit money, and that he obtained same with notice and without consideration; that Segler after-wards came to San Antonio and got hold of Bown and procured Bown to introduce him at the bank and assist him in disposing of said draft, with the fraudulent intention of appropriating same and the proceeds thereof to his own use and. benefit; that Bown undertook to help Segler carry but his said fraudulent purpose; that the pretended transfer, and assignment of said draft by Segler and Bown to plaintiff was made' in January, 1916, about six months after the draft was issued; that the draft was not presented for payment within a reasonable time, and that the holders thereof were inexcusably negligent in not sooner presenting same, and that it was not presented sooner because those holding it knew of said fraud and failure of consideration; that plain, tiff did not acquire the draft in due course; that plaintiff, in taking the draft, acted with gross negligence amounting to bad faith and was not an innocent purchaser without notice; that plaintiff did not purchase the draft outright, but simply advanced some money to Segler and Bown and took the draft with the understanding that it would present same to the oil company for payment and that if same was not paid on presentation Segler and Bown would repay to plaintiff the money so advanced to them; that plaintiff had reason to believe, and did believe, that the oil company might have valid defenses to the draft, and therefore did not buy and take title thereto, but only undertook to handle same for said Segler and Bown in order to assist them in collecting it; that the circumstances attending the acquisition of the draft by plaintiff were sufficient to put it upon notice that there was fraud in some respect in connection therewith, and to require plaintiff, in the exercise of good faith, to make inquiry into the matter; and that such inquiry, if made in good faith and pursued with the slightest diligence, would have led to knowledge of the fraud and failure of consideration.
“Plaintiff dismissed as to Segler. Barnes and Bown defaulted.
“The case was tried before a jury. When the evidence was in, the court instructed the jury to return a verdict for plaintiff against Barnes and Bown for the full amount of the draft, and against the oil company for $42 (the value of the 600 pesos not confiscated) and interest. The verdict was returned as directed, and judgment entered accordingly.
“The plaintiff has appealed from the judgment in its favor against the oil company because same was not for the full amount of the draft.”

The first assignment assails the peremptory instruction given, the jury. Appellant’s proposition is that the negotiable draft drawn by appellant upon itself payable at sight was not overdue when purchased by the appellant bank, because the draft had not been presented to the drawee for payment.

Under the facts of this record, the draft was obtained from the drawer by the fraud of the payee therein and could not be enforced against the drawer. Without detailing other facts, it may be conceded for this assignment that, if the appellant purchased the draft before maturity, it would have been protected by the rule of law favoring a bona fide purchaser for value in due course of trade without notice.

The only question raised by the assignment is whether the sight draft became overdue only after presentation to the drawee for payment.

The only difference between the date of maturity of a paper payable “at sight” and one payable on demand is that in the former it is a recognized custom to allow three days of grace, while a demand paper has no three days of grace. Waggoner v. Gray, 165 S. W. 925; Brown v. Chancellor, 61 Tex. 437.

The Supreme Court of Texas, followed by-several of our Courts of Civil Appeals, has unequivpcally announced the rule that a paper payable on demand is due when executed, and thereafter is overdue. Cook v. Cook, 19 Tex. 434; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Pitschki v. Anderson, 49 Tex. 1; Swift v. Trotti, 52 Tex. 498; Kamp-mann v. Williams, 70 Tex. 568, 8 'S. W. 310; Henry v. Roe, S3 Tex. 446, 18 S. W. 806; Sam v. Ludtke, 203 S. W. 98; Pollard v. Allen, 171 S. W. 530.

The courts of many other states have announced the rule that a “demand” or “sight” paper does not mature until a reasonable time after its execution. And some states have the rule that a sight draft matures only after presentation for payment. Those courts holding the reasonable time doctrine are enumerated in note 90, vol. 8, Corpus Juris, p. 408; 1 Daniel on Neg. Ins. (6th Ed.) § 783. Those decisions holding that presentation only matures the sight draft are collated in 8 Corpus Juris, p. 409, § 605, and note 6.

We must follow the rule announced by the Supreme Court of Texas without inquiring into the relative value of the rationale of the three rules, and hold that the sight draft before us was past due when purchased by. the appellant bank, more than six months aftér the execution and delivery of said draft. Since the draft was overdue when purchased by the appellant, it was subject to the defense of fraud which the drawer had against the payee named in the draft. This offset is expressly authorized by the statute of Texas. Vernon’s Sayles’ R. C. St. art. 582.

The third assignment presents the same proposition as th'e first. Both the first and third assignments are overruled.

The second and fourth assignments urge that the sight draft for purposes of transfer did not become overdue until the lapse of a reasonable time after the execution and delivery of the sight draft. As stated in our discussion of the first assignment, the courts of many states sustain appellant’s proposition; but the appellate courts of Texas fix the date of maturity of the sight draft as of the date of execution. If th’e question were an open one in this state, the writer hereof is of the opinion that a demand or sight draft should be past due only after presentation for payment. Such seems to express the intention of the parties. The liability of the drawer is not matured until after presentation to the drawee, and prior to presentation the drawee has no liability. It therefore seems more reasonable to fix the date of maturity of the sight draft after presentation for payment, at which time the liability of all parties connected with the draft, such as drawer, drawee, payee, and indorsers, become certain. It may be that, if this question had been presented upon facts similar to those of this ease, our courts would have qualified the rule as herein suggested. However, in deference to the decisions of our appellate courts, we hold that the sight draft was past due when purchased by the appellant more than six months after the sight draft was drawn.

The second and fourth assignments are overruled.

The judgment is affirmed.
      —-.TTnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BRADY, J.

text:
    PLANTERS’ OIL CO. v. HILL PRINTING & STATIONERY CO.
    (No. 6001.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 2, 1919.)
    1. Sales ©=>353(1) — Complaint — Sufficiency.
    In an action for purchase price, the contract as set forth in the petition held to contain the necessary elements to constitute a valid written contract under the averments of a petition when tested by demurrer.
    2. Sales 3=353(1) — Complaint—Sufficiency — “Executed.”
    In an action for purchase price, a petition alleging that buyer executed the contract set out in the petition held sufficient as against a general demurrer, since the word “executed,” in a legal sense, includes delivery and implies a completed contract (citing Words and Phrases, First Series, Execute).
    3. Sales ©=>353(7) — Contract—Breach—Actions — Pleading—Defense.
    In an action for purchase price, the contract appearing complete on its face as set out in petition, and providing seller would protect buyer should the order run less than the amount specified, the condition was for buyer’s benefit, and petition need not allege that any particular quantity was ordered, such being strictly defensive matter.
    4. Courts ©=>121(5) — Texas—County Coubt —Jurisdiction—Amount.
    Where the petition prayed for the recovery of $185 principal and interest thereon, together with 10 per cent, attorney’s fees, which sufficed to make the amount in controversy in excess of $200, the amount is within the Jurisdiction of the county court.
    5. Appeal and Error ©==>1040(10) — Harmless Error — Overruling Exceptions.
    The overruling by the trial court of special exceptions to petition was not reversible where, in view of the evidence, defendant was not prejudiced.
    ■6. Appeal and Error <S=>728(2) — Assignments op Error — Sufficiency—Evidence. An assignment of error complaining of admission of evidence, but not undertaking to eet out even the substance of either question or answer, is insufficient, under the rules of the court of appeals, to require consideration.
    T. Appeal and Error <©=>104-8(5) — Review— Evidence — Admissibility—Prejudice.
    If an interrogatory was objectionable as •calling for the conclusion of the witness, and too general, vague, and indefinite, it cannot be held prejudicial where the answer was immaterial, relating to a matter not in dispute.
    ■8. Appeal and Error ©=>613(1) — Bill of Exceptions — Authentication — Failure to Make.
    Under statutes requiring that a bill of •exceptions be taken to the refusal of requested ■special instructions, and that such bill be authenticated, and allowance or approval shown, where proof thereof is not of record the alleged error cannot be reviewed.
    9. Sales ©=>359(1) — Breach of Contract-Actions — Evidence,—Weight and Sufficiency.
    In an action for purchase price, where buyer refused to receive and pay for goods, evidence that under contract title passed on shipments held sufficient to support a verdict and judgment for seller.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Suit by the Hill Printing & Stationery Company against the Planters’ Oil Company. Verdict and judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. Felton Lane, of Hearne, for appellant.
   BRADY, J.

This suit was instituted by appellee to recover from appellant the purchase price of certain cotton receptacles, which were alleged to have been purchased by appellant of appellee upon a certain signed written order. The case was submitted to the jury upon special issues, and judgment was rendered for appellee upon the verdict of the jury for the amount sued for, and appellant duly appealed to this court.

Findings of Fact.

Appellant executed and delivered to ap-pellee, on or about the 24th day of July, 1915, a certain written order, ordering from appellee 20,000 cotton receptacles, at the price'of $9.25 per thousand, the said order being as follows:

“Hill Printing & Stationery Company, Waco, Texas, date 7/24/1915.
“Charge the following articles to Planters’ Oil Co.:
“Salesman’s Order No. -. Register No.
-. Address, Hearne, Tex.
“Ship by -, care -.
“Ship to -. When ship, Aug. 10th, T5.
“All bills are due and payable in current funds at Waco, Texas, on the 5th of month following date of purchase. This order is not subject to countermand.
“-, date received. Register No. -.
Date shipped,-. File No.-. F. O. B.
Waco factory.
“Ship following order, which is subject to your approval, on terms stated above. This, as well as all previous and all subsequent purchases and indebtedness, is payable at your office in Waco, Texas, with interest after maturity at 10 per cent, per annum until paid, and 10 per cent, additional on amount of principal and interest unpaid for attorney’s fees if placed in the hands of an attorney for collection.
“Quantity. Stock or Class No.
20 M Cotton receptacles. 9.25
“Imprints to follow and shipping instructions to follow.
“The terms of this shipment is strictly cash.
“F. O. B. Waco.
“Should order run less than above amount, we will protect Planters’ Oil Company on the quantity.
“[Signed] P. O. Co., O. Robinson.”

The cotton receptacles referred to in this memorandum of contract consisted of pasteboard boxes for the use of ginners in placing samples from bales of cotton ginned by them, and on the imprint of the boxes was a place for putting certain data, containing the name of the ginner, the person to whom the cotton belonged, the grade, etc. The imprints were to be printed on posters and affixed to the boxes. Pursuant to the said order, and before shipment, appellee’s agent called up the manager of appellant and requested instructions for shipping and imprints, but appellant’s manager notified ap-pellee that appellant would not accept delivery of any of the receptacles, and that it did not desire any imprints forwarded. Appellant’s manager, who handled this transaction, admitted that he never at any time furnished appellee with any instructions as to imprints, and testified that he would not have accepted delivery of any imprints had they been tendered.

Appellee wrote a number of letters to appellant, to which it received no reply, and shipped the goods to appellant; but acceptance of delivery was refused, and when notice that the goods were at the depot at Hearne was received by appellant’s manager he declined to receive them.

There was no evidence that there were any other terms or conditions of the contract agreed upon between the parties, except as substantially set out in said written memorandum of the contract. Appellant contended by 'its pleadings that the contract was not complete, and that it was not obligated to take the quantity of receptacles provided in the contract, nor any part thereof; but the testimony of appellant’s manager shows that he executed and delivered the signed order, with the statement to appel-lee’s salesman that he did not know whether or not appellant could use as much as 20,-000 receptacles, and that said salesman informed him that appellee would protect appellant in the matter of quantity, and that appellant would not have to take the 20,000 receptacles, unless it needed them. Appellant’s manager further testified that he never ordered out any part of the receptacles, and never furnished appellee with imprints or shipping instructions. His testimony also shows that appellant did not undertake to accept part of the goods, but refused to accept any of same, and that the reason for declining to accept any part of the shipment was that he had found the ginners in his territory overstocked with such receptacles, which they had purchased at a lower price than appellant had agreed to pay appellee, and, further, because appellant had never received any orders from any ginners for the receptacles.

The special issues submitted to the jury and the answers thereto are as follows:

“Special Issue No. 1. Was the contract entered into between plaintiff and defendant a complete contract for the purchase of the 20,-000 cotton receptacles, or was it an optional contract, subject to the option of the Planters’ Oil Company to later order such of the cotton receptacles as they might desirei?
“If you pnd that the contract mentioned was a complete contract your answer to the above question will be ‘Complete’; but if you find it was optional, as above inquired about, then your answer will be ‘Optional.’ ”
Answer: “Complete.”
“Special Issue No. 2. Did the plaintiff, Hill Printing Company, ship to the defendant, Planters’ Oil Company, 20,000 cotton receptacles of the kind and grade agreed upon prior to August 10, 1915?”
Answer: “Yes.”

Opinion.

Appellant’s first assignment of error presents the point that the trial court erred in overruling its general demurrer to appellee’s petition, because the petition showed on its face that the pretended order was not a complete contract, but was a mere optional contract or order, and that there were no averments showing any subsequent order or contract completing the purchase, nor any compliance with the provisions of the contract as to imprints and shipping instructions, nor any delivery of the order alleged, but a mere allegation of the execution of the instrument.

We think this assignment is groundless, for the order does not appear on its face to be an incomplete or partial memorandum of the contract, but contains all the necessary elements to constitute a valid written contract under all the averments of the petition. The allegation that appellant executed the order was sufficient, as against the general demurrer, to constitute an averment of delivery. The word “executed” in a legal sense includes delivery, and implies a completed contract. Lomax v. Bank, 39 S. W. 655; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 570; Words & Phrases, vol. 3, p. 2558.

The signed order does include the clause, “should order run less than above amount we will protect Planters’ Oil Company on the quantity”; but this provision is a mere condition inserted for appellant’s benefit, and for its protection, in case it should not desire to use the full quantity ordered. Any questions arising from the contract as to the furnishing of imprints, shipping instructions, or ordering or using a quantity less than prescribed in the contract, were strictly defensive matters; and, under the averments of the petition, we think it was sufficiently alleged that there had been executed a complete contract, evidenced by written memorandum, and that appellee had complied with the terms of the contract, and shipped the goods which were refused by appellant. The petition, in our opinion, is good as against a general demurrer; and therefore appellant’s first assignment of error is overruled.

The second, third, and fourth assignments of error all" relate to the claimed error of the trial court in overruling certain special exceptions to appellee’s petition, which are found in appellant’s answer. These exceptions are each, in substance, a speaking general demurrer, and raise substantially the same points as are embodied in the general demurrer. With more elaboration, they point out the claim that the petition was vague and indefinite; that the contract on its face purports to be partial and incomplete, constituting a mere option agreement, authorizing appellant to purchase all, any part, or none of the goods specified in the contract; and that the petition does not allege any subsequent or supplementary agreement completing the contract; and also that the petition does not show am amount in controversy sufficient to confer jurisdiction upon the county court.

The same reasons which impelled us to overrule the assignment complaining of the action of the trial court in overruling the general demurrer require us to hold that none of these special exceptions are well taken. It may be added, however, that the petition sued and prayed for a recovery of $185 principal and interest thereon, together with 10 per cent, attorney’s fees, which allegations suffice to make the amount in controversy a sum in excess of $200, and therefore within the jurisdiction of the county court.

We believe that the trial court properly overruled each of said special exceptions; but that, if there was any error in the overruling of same, it was, in view of the evidence in the record, harmless error, and not such as would authorize the reversal of the case.

Eor these reasons the second, third, and fourth assignments of error are overruled.

Appellant’s fifth assignment of error complains of the action of the trial court in admitting in evidence, over the objection of appellant, the answer of the witness N. B. Mayer to interrogatory No. 13, because the said interrogatory called for the conclusion of the witness, and was too general, vague, and indefinite to form the basis of a proper answer, and did not apprise appellant of the facts sought to be elicited sufficiently to permit cross-examination of the witness.

This assignment does not point out the claimed error sufficiently to require this court to consider it. It is true that in the statement there is a reference to a bill of exceptions in ,the transcript, which undertakes to state the interrogatory, but the said bill of exceptions • does not show what the answer of the witness was which it is claimed was erroneously admitted. There is also in the statement under this assignment a reference to the statement of facts which contains the answer to interrogatory No. 13, but the statement of facts does not show what the question was. The assignment itself not having undertaken to set out even the substance of the question nor the answer, we think it wholly insufficient, under the rules, to require our consideration.

However, the answer of the witness to the particular interrogatory, even if the latter were legally objectionable, was immaterial, and could not possibly have been prejudicial to appellant. The answer related to a matter not at all in dispute, as there was no issue whatever made as to the price of the goods or the quality of the same. Therefore, the answer having related only to these matters, which were not submitted to the jury, and which were not in dispute, the admission of it could not reasonably have had any effect upon the jury’s answers to the other questions submitted to them; hence, if this assignment should be considered, it would have to be overruled.

The appellant’s eighth to eighteenth assignments of error, inclusive, all relate to the point that the trial court erred in failing and refusing to submit to the jury certain special issues requested in writing by appellant. If the point had been properly preserved, it might be that appellant would have been entitled to have had some of these questions submitted to the jury, and to have the action of the trial court thereon reviewed; but under our statutes the point has not been properly saved, and we are without authority to review the alleged error of the trial court in refusing such special instructions.

By reference to the transcript we find that appellant made written request for the submission of the special issues embraced in the foregoing assignments, and also that it attempted to except to the alleged action of the trial court in refusing to submit such special instructions; but there is in the record no evidence of the action taken by the trial court, and no authentication whatever of the action of the trial court thereon. Our statutes require a bill of exceptions to be taken to the action of the trial court in refusing to give requested special instructions, and that the bill of exceptions should be authenticated, and the allowance or approval.of the bill shown. We find no such proof in the record, and therefore the alleged error of the trial court cannot be reviewed.

By the nineteenth and twentieth assignments of error appellant complains that the trial court erred, in submitting as the sole special issues in the case the two special issues which were submitted to the jury. These special issues may be considered the general charge of the court; but we find that appellant, while attempting to show that it objected to the charge of the court, has not shown any authentication of such objections or of the action of the trial court on such objections. Under our statutes it is imperative that in some authorized manner there must be shown in the record an authentication of the objections or of the trial court’s action; otherwise we cannot review it.

For the reasons given we overrule appellant’s eighth to twentieth assignments of error inclusive. See Ry. v. Dickey, 108 Tex. 126, 187 S. W. 184.

Appellant’s twenty-first assignment of error raises the point that the trial court erred in rendering judgment in favor of ap-pellee because the evidence did not support a finding by the jury or by the court of sufficient facts to authorize such judgment.

By its twenty-third assignment of error it presents the same point, with a detailed statement of the evidence, which it is claimed shows the judgment and verdict without support in the facts.

We have carefully examined the statement of facts, and conclude that under the same there was evidence to support the verdict and judgment, and that no other judgment could reasonably have been rendered under the facts of the case and the findings of the jury.

Under the first special issue the jury found against appellant’s theory that the contract was merely optional, and there was substantially no other issue made by the pleadings or the evidence. Under, the testimony of appellant’s own manager, it never undertook to order any less than the 20,000 receptacles specified in the contract, refused to furnish data for the imprints, and would have refused to receive them had they been sent. It made no complaint that the shipment was too great in quantity, but refused to accept any part of the shipment. Its manager had previously notified appel-lee that he would not accept delivery of the receptacles, and that he did not desire ap-pellee to furnish any imprints, and positively testified that he would not have accepted delivery of same had they been tendered him.

The twenty-first and twenty-third assignments of error are accordingly overruled.

The twenty-fourth assignment of error Is to the effect that the judgment of the trial court should be set aside, because there was neither pleading nor proof of any delivery of said order.

As we construe the pleadings, there was a sufficient averment of delivery of the order, and the proof showed that such order was signed and delivered by appellant, through its manager, to the agent of appel-lee, and that such order was by him in turn sent in to appellee for performance. There is no pretense in the evidence of any issue questioning the delivery of the order; hence this assignment is without merit and is overruled.

By his twenty-fifth and last assignment of error appellant asserts that the judgment of the court below should be set aside because neither in the pleadings, proof, nor charge of the court was any measure of damages pleaded, proven, or submitted to the jury.

Under the pleadings and undisputed evidence the contract was for the purchase of goods at a specified price, and by its terms-the title passed upon the shipment of the goods, or at least upon tender of delivery thereof, to appellant. Under the contract the goods thereupon became the property of appellant, and it became liable to appellee for the price. There was no question about the price, nor any controversy as to the quantity specified and shipped under the contract; therefore there was no occasion to submit any question of measure of damages to the jury, and there could have been but one measure of damages under the pleadings and proof, which was made the basis of the judgment of the court under the findings of the jury and the undisputed evidence.

This disposes of all the assignments of error, and, finding no reversible error of record, the judgment below is affirmed.

Affirmed. •
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    THAMES v. CLESI et al.
    (No. 402.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Appeal and Error <@=>725(1) — Assign-joints oe Error — Sufficiency — Rule oe Court.
    Notwithstanding rules 24 and 25 of Courts of Civil Appeals (142 S. W. xii), an assignment of prejudicial error in sustaining defendant’s plea of limitation in an action on quantum meruit, not affirmatively specifying the grounds of error, would be considered, in view of the liberal rule adopted in reference to the briefing of cases.
    2. Contracts <@=346(12) — 'Variance.
    A cause of action upon a quantum meruit is different from a cause of action on an express contract, and, unless the causes are pleaded in the alternative or in different counts, evidence cannot be introduced on the cause not so pleaded.
    3. Judgment <@=>252(4) — Pleading — Prayer eor Alternative Relief.
    A judgment on either a cause of action on, a quantum meruit or on an express contract cannot be sustained unless that particular cause of action is pleaded in the alternative or in different counts, and a more prayer for relief in the alternative is not sufficient.
    4. Limitation of Actions <@=127(13) — Amendment.
    Where the petition contained a declaration only upon an express contract, with a mere plea in the prayer in the alternative for recovery on quantum meruit, the court properly sustained an exception to an amended petition pleading a quantum meruit in the alternative, filed more than two years after the cause of action accrued.
    5. Appeal and Error <@=?272(1) — Peremptory Instruction — Review—Exceptions.
    To have a peremptory instruction reviewed, the giving of the instruction must be excepted to at the time and before it is given to the jury, and unless a bill of exceptions is reserved the giving of the instruction cannot be reviewed.
    6. Appeal and Error <@=>544(3) — Peremptory Instruction — Review—Fundamental Error.
    The giving of a peremptory instruction does not raise the question of fundamental error to be reviewed by the court in the absence of bill of exceptions attacking the giving of such instruction.
    7. Contracts ®=>323(3) — Nonperformance-Question for Jury.
    In a suit to recover under an express contract to lay tile floors in a neat and workmanlike manner, evidence for plaintiff to show that the floor was laid in a neat and workmanlike manner, or substantially in that manner, heM insufficient to raise an issue for the jury, so that peremptory instruction for defendant was proper.
    8. Trial <§=>139(1) — Directed Verdict — Evidence.
    It is the court’s duty to instruct a verdict even though there be slight testimony, if its probative force is so weak that it only raises a mere surmise or suspicion of the facts sought to be established, such testimony falling short of being any evidence.
    9. Contracts <@=5295(1) — Substantial Performance.
    Where there was no substantial compliance with a contract to lay tile floors in a neat and workmanlike manner, and any cause of action on quantum meruit or an implied contract having been barred by the two-year statute of limitations, plaintiff could not recover.
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Suit by T. W. Thames against J. A. Clesi and others. Judgment for defendants by direction, and plaintiff appeals.
    Affirmed.
    Smith & Crawford and B. P. Pye, all of Beaumont, for appellant.
    Orgain, Butler & Bolinger, of Beaumont, for appellees.
   BROOKE, J.

On May 25, 1915, appellant filed his petition in the county court at law of Jefferson county, seeking a recovery against appellees for material furnished and labor done in September, 1914, under a contract entered into on July 24, 1914, to furnish material, and to place one inch or one and one-eighth inch floor tile, with border, in the Crosby House Barber Shop, in the city of Beaumont, for the sum of $288, which work was to be done in a neat and workmanlike manner. On December 10, 1917, appellant filed his second amended original petition, wherein he pleaded the sala contract, and the furnishing of said material and the performance of said labor, and prayed for a judgment in the sum of $288, the contract price, and for the sum of $20 as attorney’s fees. Alternatively appellant prayed that—

“If it should appear upon the trial of this cause that plaintiff did not substantially comply with said contract, then and in that event plaintiff prays that he recover against defendants, and each of them, whatever amount it should appear that his labor and material furnished was reasonably worth on quantum meruit basis.”

Appellees urged special exceptions, as follows: (1) To appellant’s prayer for the value of services rendered on quantum meruit, urging that the same was barred under the statute of two years’ limitation; (2) that an action upon quantum meruit would not lie in favor of appellant because of the fact that an action was sought upon an express contract, and that a recovery on quantum meru-it basis could be only in the event there is no written or express contract, and no recovery in law could be had upon an implied contract based on quantum meruit where plaintiff has failed to comply with the terms of an express contract.

The court sustained the two special exceptions urged by appellees, and, after hearing the evidence and argument of counsel, peremptorily instructed the jury to return a verdict in favor of the appellees, defendants below, because of the fact that, as a matter of law, appellant had failed to. show strict compliance with the contract; to which action of the court appellant duly excepted in open court, and has properly perfected his appeal to this court.

At the outset appellees object to the consideration of appellant’s first assignment of error because such purported assignment is not in accordance with rules 24 and 25 (142 S. W. xii), in that such purported assignment of error does not distinctly specify the grounds of error, and does not particularly set forth the error complained of.

The assignment seems to be simply this: That the court erred to the prejudice of plaintiff in sustaining defendants’ plea of limitation to plaintiff’s cause of action on quantum meruit. It does not affirmatively appear in wliat way error was committed, if any, and is too general in its terms, etc. Complaint is also made that the first proposition is not germane to the first assignment of error, and that the proposition is simply an abstract statement of the law, and as such ought not to be considered by the court; and complaint is made also of the consideration of appellant’s first proposition under the first assignment for the reason that it is urged there is not any sufficient statement thereto; that the statement thereto is not sufficient to explain and support the proposition.

This court has adopted a liberal rule with reference to the briefing of cases, and we are not disposed to be technical in that respect. Therefore the first assignment will receive our attention.

It is urged with respect to the first assignment of error that appellant not having alleged and set out facts constituting a cause of action on the basis of quantum meruit in a separate count, in the alternative, in a suit on an express contract, there could be no recovery on a basis of quantum meruit. Paragraph 1 of the petition sets out that appellant entered into a contract with appellees to furnish material and labor in laying a tile floor in defendants’ barber shop; the material was to be one and one and one-eighth tile, with border, work to he done in a neat and workmanlike manner, for the sum of $288. In paragraph 2 of the petition appellant sets out that he performed the work according to the contract, and that the appellees owed him $288, with 6 per cent, interest from January 1, 1915, and asked for $20 attorney’s fees. In the prayer for relief, concluding his prayer, appellant prayed that if it should appear that plaintiff did not substantially comply with said contract, then and in that event plaintiff prayed that he be permitted to recover against appellees and each of them whatever amount it should appear that his labor and material furnished was reasonably worth on quantum meruit basis.

The cases of Jones v. Holtzen, 141 S. W. 121, Morrison v. Bartlett, 131 S. W. 1146, Broussard v. South Texas Bice Co., 120 S. W. 587, Felton v. Talley, 31 Tex. Civ. App. 336, 72 S. W. 614, and Wanhscaffe v. Pontoja a, 63 S. W. 663, hold that a cause of action on a quantum meruit is different from a cause of action on an express contract, and that unless these causes of action are pleaded in the alternative, or different counts, evidence cannot be introduced on that cause of action not so pleaded, nor would a judgment on either of such causes of action be sustained unless that particular cause of action is so pleaded; and it is not sufficient that there is a mere plea in the prayer for relief in the alternative, but that a cause of action shall be raised by separate counts specially pleaded, as a basis for the prayer in the alternative; for, unless there was a plea as a basis for such prayer, there would be a prayer without a basis in the plea. An examination of plaintiff’s petition will show that there was no separate count or pleading in the alternative raising the question of a recovery on the basis of quantum meruit, but a declaration only upon an express contract, with a prayer in the alternative for a recovery on the basis of quantum meruit, in the event the court should find there was not a substantial compliance with the contract, which prayer has no basis in plaintiff’s pleading, and is supported by no count. The court having sustained ap-pellees’ exceptions to appellant’s purported "plea on the basis of quantum meruit, on the ground that the bar of two years’ statute of limitation had run against such purported plea at the time of filing it, there was, in our opinion, no error ⅛ the court’s refusal to consider such purported pleading on quantum meruit. See G. B. Scott, Boone & Pope v. Willis, 194 S. W. 220; S. A. & A. P. By. Co. v. Bracht, 157 S. W. 269; M., K. & T. By. Co. v. Byan, 170 S. W. 858; Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707; Booth v. Packing Co., 105 S. W. 46. In the case of G. B. Scott, Boone & Pope v. Willis, supra, on July 27, 1916, more than two years after the cause of action had accrued, appellant filed a second amended petition, and, in addition to declaring on an express contract as against the Sidbury Lumber Company and Byron Willis, appellant set up in the alternative an implied contract to pay the attorney’s fees. That part of the pleading as to the implied contract was accepted to as being barred by the statute of limitation of two years, and the exception was sustained. The party appealing assigned error to the holding of the court, and it was held that these were two separate and distinct causes of action, and that the pleading that would support one would not support the other, and the statute of limitation had run against the plea on an implied contract, and that the exception was properly sustained. In the case of S. A. & A. P.' By. Co. v. Bracht, supra, the court set out its reasons at length that a suit upon an express contract is different from a suit on a quantum meruit or an implied contract, and that the proof that will sustain the one will not sustain the other, and that inasmuch as they are different causes of action, and demand different character of proof, a failure to plead one until after the two years’ statute of limitation has run, where an exception raising the question of limitation is presented, such exception will be sustained and a recovery will be barred. Such seems to be the ruling opinion in Phoenix Lbr. Co. v. Houston Water Works, supra, and in M., K. & T. Ry. Co. v. Ryan, supra. Tiie appellant did not, in a separate count, allege a cause of action on the basis of quantum meruit; but in Ms prayer for relief prayed that, if the court found there had not been a substantial compliance with the contract, then and in that event he be permitted to recover the reaisonable value of his labor and material furnished. The cases set out above all hold that it takes a different character of proof to sustain a plea on an express contract from that to sustain a plea on an implied contract or on the basis of quantum meruit. A contract having been entered into on July 24, 1914, and plaintiff not having sought a recovery on a prayer for a recovery on the basis of quantum mer-uit until December 10, 1917, the statutory, period of two years’ limitation had run against such cause of action, if any he had, and the same was barred and the court properly sustained the defendants’ exception to the purported plea of quantum meruit filed af too late a date by plaintiff.

We have diligently gone over the authorities cited by appellees supporting the principles announced, and we are of opinion that the action of the lower court was authorized, and there was no error in same. Therefore the assignment of error is overruled.

The second assignment of error is as follows:

“Because the court erred to the prejudice of this plaintiff in instructing the jury to return a verdict in favor of the defendants when the evidence authorized and warranted the submission of the facts to the jury on the issues involved, since there was ample evidence to the effect that said contract was complied with by plaintiff.”

It is urged that the court not consider the second assignment of error, for the reason that such assignment does not comply with rule 25, which requires that such assignment must refer to that portion of the motion for new trial in which the error is complained of, and it is urged also that the •court should not consider the statement under said second assignment. We have already announced the rule that this court has heretofore been liberal in the practice with reference to the briefing of eases considered by us. We will say, however, that in the case of Munroe v. Munroe, 54 Tex. Oiv. App. 320, 116 S. W. 878, it was held that a statement which does not point out the portions of the phtition excepted to, and does not set out the substance of the exceptions as required by the rule, will not be considered.

In order to have the giving of a peremptory instruction reviewed by the court the giving of the instruction must be excepted to at the time, and before same is given to the jury, and, unless a bill of exception is reserved, the question of giving the instruction cannot be reviewed. See Needham v. Cooney, 173 S. W. 979; Yates Mercantile Co. v. Farmers’ Guaranty State Bank of Jacksonville, 194 S. W. 1157; Carr v. Pecos Valley State Bank, 189 S. W. 988; G., T. & W. Ry. Co. Dickey, 108 Tex. 126, 187 S. W. 184.

It seems, therefore, that the giving of a peremptory instruction does not raise the question of a fundamental error to be reviewed by the court, in the absence of the bills of exception attacking the question of giving instructions.

The testimony of the plaintiff and the witness Blakeley, only raising a surmise that the material furnished and labor done was done in a neat and workmanlike manner, and all the other testimony of the witnesses, and the exhibits of the floor, showing conclusively that the work was not performed in a neat and workmanlike manner, and that the performance in a neat and workmanlike manner was to be the very essence of the contract, it is urged that there was no issue raised to be passed upon by the jury.

T. W. Thames, witness for plaintiff, testified :

“I also told him that they could have the floor by Tuesday morning.”
“When a tile floor is properly laid, according to pattern, there should not be any cracks between the separate sheets of tile that are joined together. As to whether there should be any more cracks between the point where two sheets of tile meet than there is between any two tiles in a sheet, there is a reasonable amount of cement, you see, that has to work in between the tiles. There should not be any large cracks in the floor. Those cracks ought not to be cracks visible to the naked eye; in other words, it ought to present a solid, complete, and uniform surface, when the floor is properly laid. * * * It is a fact that I came back and sent a man six or seven times to patch on that floor. It is a fact that finally I left some of my tools there, I never did get them; never came back after them. I patched until I got tired, and saw I wasn’t going to get any money, and I quit.”
“It is a fact that one of the miters in this tile floor, place where two corners meet in the floor, there, is all out of plumb. I do not know whether it is unsightly or not; it is there yet. * * * When a tile floor is properly laid under ordinary conditions, it is a perpetual proposition if you give it time to set.”
“As to whether this miter at the same time was out of plumb, and there were irregularities in that floor in certain places right after I left it, they were there, they are there now.”

George M. Blakeley, witness for plaintiff,' on cross-examination testified:

“In the proper laying of a tile floor the tiles ought to come up close together, if they are on paper as they ought to be; they ought to come up together. As to whether those sheets of tile ought to come as close together where they join, ought to be close together as the individual tiles on an independent sheet, if the floor is properly laid, they always try to get them up together.”

A. Babin, witness for defendants, testified on direct examination:

“If a tile floor is properly laid, there should not be any space between the points where the strips of tile join each other larger than the space between the individual tile.”
“At the juncture of the border, two lines of the border of that tile floor, in the southwest corner of that building, the border does not properly connect up. The border at that place should have been mitered together instead of running one into the other. At that place, instead of mitering, one runs past the other, instead of coming up and making an angle. It is not like it should be; the border runs into the side border. * * * The way that border is put in makes an unsightly place in that room; it looks bad. In other words, it is not properly laid at that point. I noticed other places in that floor where, in my judgment, that tile was not properly laid. There is some defective point in there where the tile was not properly connected —split too much; where the sheets come together they are split apart. That is a general condition in that tile floor and other places in the floor as laid; this space as shown in that picture, between the tiles, is what I have reference to. Proper tile setting would not have left those spaces. * * * That is not a neat job.”
“That is an unsightly place where that border is; it is bad. Proper tile setting would not have allowed that to occur. The border along the east side of that floor is lower in some places than the tiles composing the floor. * * * If a workmanlike job means a job which is layed with perfection according to the skill required in that sort of work, I would not say that this was a workmanlike job.”

A. R. Willard, witness for defendants, testified on direct examination:

“It isn’t what you call a good job.”

B.. A. Heartfield, witness for defendants, testified on direct examination:

“There was some places where the tile was poorly matched, and other places there was cracks — that is seams, not close together; in other places there was some loose tile.”

On redirect examination this witness testified :

“As to whether, in the condition this tile was in, having cracks in certain portions of the floor, defects in this border in other portions, loose tiles in other portions of the floor, and other defects such as you have asked me about, in my opinion it would be necessary to tear that floor out and put a new floor in to do a neat and workmanlike job. Well, now, as far as part of that question, I will say, for instance, loose tile, you can replace your loose tile, in fact, if there are several of them, if they fit properly, you could replace that all right; but if a glaring defect through several parts of the main floor, you couldn’t carry out a design, unless you relaid the whole floor. Taking the floor as a whole, in order to make a first-class job, considering these cracks in different parts of the floor where the tiles don’t match up, it would be practically necessary, I should think, to remove that whole floor and put down a new one.”

J. A. Olesi, witness for. defendants, testified :

“I am absolutely positive that they completed the laying of that tile on Sunday night. * * * We moved in Tuesday morning, just between seven and seven-thirty, when the men came on to work; we all helped and carried the chairs in. We did not move the big cabinet that the barbers keep their hats and coats in at that time. It stayed out there for nearly a week.” “We moved the iron safe back, I should imagine between Thursday or Friday of the following week. * * * None of that furniture was dragged over the floor.” “When that floor was turned over to me, well the front part of it, the tiles were very far apart. There was a hill there, not level; in fact, I had a time to push the door shut; couldn’t hardly get it shut; it fit jamb up against the floor. We had to sort of lift the door to shut it. * * * Before the tile floor was put in I could shut that door easily. * * * Well, the condition of the floor was in bad shape. The border was crooked, zigzag; the miter in bad shape. * * * It don’t meet like, a corner; lacks a quarter of an inch or more of meeting. There were places in that floor at that time where there were cracks such as shown in this picture here between those tiles. There are a whole lot more cracks like that in theye than this picture shows. They arc scattered throughout the whole floor. On the center east there is lots of loose places like .that; under the settees it is all loose; all the tile is all off. Along the east line of the border of that room it don’t meet. I can get hold of it like this; I can grab — the border is so much lower I can grab it just like that. It is lower than the floor. There are places where the tiles don’t meet the border; there are spáces between. That space is all the way from one-eighth to one-fourth or one-half an inch wide. * * * By actual measurement, it is four feet from this place in the tile floor where most of the tiles have come loose to that wash basin. * * * I don’t believe that the first tile that came up with the broom when the boy was sweeping was over a week. Mr. Thames came up when, the boy was sweeping with one of these here brooms, and I heard the noise, and I looked and it was one of the tiles. It came up when sweeping. They continued to do that. As to how big a space has come up in the tile floor from that time to this — at one time there was a space I measured that was about 20 inches long. It wasn’t exactly square; and about 14 inches wide, perfectly bare. That space came up shortly after Mr. Thames quit repairing it. * * * I never did accept that floor. He never turned it over to me as finished. * * * The floor looks very unsightly. Within two weeks after it was laid, why that front part was just as bad, and this other place, just as soon as the first tile was swept off and it became loose it was just as bad as it is now. These tiles have never done anything but come loose in the ordinary use of that barber shop. The best part of that floor is a strip where the barber chairs set. The barber walks around that chair all the time; the biggest part of his work is done there. * * * There are places under the settees where there isn't any walking where the tiles have come loose, back against the wall. * * * In getting these repairs and this floor laid, as to whether it was my idea to get the shop in nice shape, I painted - everything white, and wanted a nice floor. The floor was out of harmony with the rest of the work after we got it done. Everybody comes in wants to know who done it.”

Henry Weber, witness for the defendants, testified that the way the work was put down that he would not call it a first-class job, and that he would not call it a neat and workmanlike job.

Paul Heartman, witness for defendants, testified that the general appearance of that floor shows that it is not a neat and workmanlike job.

T. Albert, witness for defendants, testified :

“I am engaged in the tile and terrazzo business, and have been engaged in said business since I have been in the United States, which is eleven years, and I have been engaged in the same line of work all that time. I am now, and have been, engaged in the business of laying tile floors and other tile work for the past eleven years, and have had eleven years’ experience in that line oí work. * * * I have seen the tile floor in a certain room in a building in the city of Beaumont, Texas, used and occupied by the Orosby House barber shop, and inspected it when I was in Beaumont. My attention was attracted because the tile was entirely out in a space about two feet square, and I made the remark to the barber who was shaving me that the tile was not properly set, as it was not. Yes; I have just stated that in a space about two feet square the tile was out; then I sounded several places in the floor, and found that the tile was loose in several places. Thei-e were defects in that floor — the keys did not match, the joints did not match and were cut off, and they had put in some pieces in where the whole tiles were supposed to go. The cause of the defects was because, in my judgment, it was not laid by skilled mechanics. Yes; there was some of the tiles lost and gone; there was also some cracks in some of the floor, and the floor was rather of the ocean wave effect. I do not remember exactly about the pattern. Yes; there was places in said floor where there was space between the tile composing the floor and the cement floor underneath; they were caused on aqcount of the fact that the floor was not laid in a workmanlike manner. If it had been laid in a skillful manner, such places would not have existed. The reason I know that such places existed in said tile floor is because I saw it and sounded the floor. The way that floor should have been treated before said tile floor was laid thereon, in order to cause said tile floor to adhere closely to said cement floor in all places, there should have been an inch and a quarter bedding between the cement floor and the tile composed of two parts and a half sand and one part Portland cement. In my opinion individual tiles in a tile floor that is properly laid will not come loose within six months or a. year, simply by the ordinary use to which said floor would be subjected in a barber shop or other public places, if it is properly set. * * * The job on the tile floor, in my opinion, in the Orosby House barber shop, in the manner which it was laid and as it appeared from my inspection of same, was a bad job; to use a slang expression, I would call it a ‘bum’ job. I will say, further, that the work on said tile floor was not done in a neat and workmanlike manner; will also state that the tile on that floor was not neatly laid; neither was it laid in a workmanlike manner; neither was said tile floor laid in a manner such as tile floors are usually laid by skillful tile men; neither was the job of making said tile floor well executed; neither was it done in a manner worthy of a skillful workman. The tile floor I am referring to could not be patched or repaired in such a manner as to make same a neat and workmanlike job, and so as to remedy the defects in the same, which I have heretofore pointed out, because you could not patch a floor so poorly laid as this one- was, and the only thing that could be done for it to be said that same was properly laid, and that it constituted a neat and workmanlike job, would be to take it up and put in a new floor, and in order to make the job a neat and workmanlike job would be to take it up and relay the whole thing, because the job was so poorly done in the first place.”

J. S. Meriwether, witness for plaintiff, testified :

“I didn’t see the floor when it was first laid, and therefore I couldn’t say whether that job, as a whole, was a first-class job of tile work; of course, at the time I saw it, I couldn’t say that it was a first-class job.”

It has been held in Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, that it was the duty of the court to instruct a verdict, even though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the facts sought to he established; such testimony, in legal contemplation, falling short of being any evidence, it would be the. duty of the court to determine whether or not the testimony had more than that degree of probative force.

In the case of Malone v. National Bank of Commerce of Kansas City, Mo., 162 S. W. 369, the court held that the fact that a party, is an interested witness, that fact alone should not be the occasion for discarding his testimony, where there is no other testimony or physical facts which cast doubt or suspicion upon the truthfulness of the interested witness’ testimony.

In the case at bar the testimony of all the witnesses except that of plaintiff himself is to the effect that the work was not done in a neat and workmanlike manner; also an observation of the exhibits, viewed in the light of the testimony of all the witnesses except the plaintiff himself, and as set out heretofore, conclusively shows that the minds of parties could not differ that the work was not done in a neat and workmanlike manner, or that it was substantially done in a neat and workmanlike manner, the witness Heartfield having testified that to put the floor in a neat and workmanlike condition it would he necessary to take up the entire tiling and to relay the whole floor. Such is the testimony also of T. Albert. There not being a substantial compliance with the terms of the contract, the causes of action, if any he had, on the basis of quantum meruit, or on an implied contract, having been barred by the statutory period of two years’ limitation, he could not recover upon the contract, under the decision of Childress v. Smith, 90 Tex. 610, 38 S. W. 518, 40 S. W. 389. It seems tbiat, prior to the time the appellant in this cause made a.contract with the appellees to place a tile floor in the barber shop, there was already a floor made of concrete and covered with linoleum, and the object of the appellees in having a tile floor laid was for the artistic effect and for the neat appearance that it would make, and for that reason the contract specially stipulated for a néat and workmanlike job, and, the same failing in being a neat and workmanlike job, the contract failed in its entirety; and inasmuch as the tiling was mismatched, improperly mitered, and there were cracks between the tiling, and the tiling came up in such a manner that in order to have the work done in a neat and workmanlike manner it would be necessary to remove all the tiling and to relay the floor, this cost of repairing would be about the price called for in the original contract. In this connection, see Manthey v. Stock, 133 Wis. 107, 113 N. W. 443.

Under the facts of this case, and under the pleadings and the testimony, there has been no error committed by the court such as would require a reversal of this cause. As said in the Joske v. Irvine Case, above, a mer£ surmise that does not amount to testimony in a case, in legal testimony, falling short of being any evidence, it would be the duty of the court to determine whether or not the testimony had more than that degree of probative force. In this case there was only the testimony, in a way, of the plaintiff, from which might have arisen a surmise that the job had been completed in a neat and workmanlike manner. This is shown, not only by the fact that he endeavored to patch up and render complete the job originally contracted for, but the further fact that after many times he became satisfied that it was impossible, and that he left his tools there and quit.

As above stated, we find that there has been no error complained of which, in our judgment, should cause a reversal of this cause, and the judgment of the lower court is therefore affirmed.

HIGHTOWER, Jr., C. J., did not sit in this case.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

      <§mcFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes