*1 BALL, Appellant, COMPANY, Inc., COOPER-STANLEY Appellee. Appeals of Texas.
Dallas. 17, 1967. Feb. Rehearing Denied Baker, Stollenwerck, Biggers,
Henry Carver, Dallas, appellant. Lloyd Dallas, Welch, R. June BATEMAN, Justice. Company, appellee Cooper-Stanley to re- Maurice Ball
Inc. sued owing cover a balance claimed to by appellee. filed done damages alleged a counterclaim for by appellee of the contract to breach paving. At the the court close of evidence appel- consideration withdrew claim granted lee’s *2 completion. will be on its motion for on its “sworn ac- measured “Job $3,400.75 ground count” for on the job year. one “Guarantee for appellant op- not his answer had sworn to posing the The court same. then sub- large “Remove rocks base. special issues, mitted to the five in an- begin immediately, comple- to “Work (1) swer which the found: permits. tion as soon as weather $1,000 ap- would a reasonable be for it; pellee’s attorney representing (2) for payment “A approximately one half appellee perform agree- did not paid job be when the is one half com- ment for the a workmanlike man- pleted, paid and the balance to be im- ner in agreement; (3) accordance with the mediately upon completion. to be $250 by defects existing work done payment Cooper- subtracted from final appellee impair- could be remedied without Stanley Company’s payment share of the whole; $3,750 (4) road as a Poovey made Wooten, Inc. be the repairing would cost of reasonable defects; (5) spec- the defects were be as guaranteed “All material by not caused the condition completed of in work- base All to be ified. work asphalt. roads beneath the standard court according manlike manner then rendered appellee final deviation practices. Any alteration or ex- involving the sworn specifications account of from above fee, and the or writ- will be tra costs executed $4,400.75, total of extra orders, and will become ten favor of All charge over and above the estimate. pellee $3,750, strikes, ac- contingent difference of agreements representing beyond $650.75 the net delays ren- our control. cidents dered in fire, favor of carry and other tornado Owner to are Our workers insurance. Compensa- fully by covered Workmen’s Appellant’s only point of on Insurance.” tion appeal complains judgment against of him on sworn account because of his fail Immediately following “proposal” thereto, answer con ure to swear to his following: we find the suit, tending being for the amount “ACCEPTANCE OF PROPOSAL contract, special claimed be due under a not does come within the of specifications prices, “The above Proce Vernon’s Texas Rules of Civil satisfactory and are here- conditions are dure. agree with this contention. accepted. You are authorized to specified. Payment will work as “proposal” The contract consists of a made as above. outlined submitted dated caption October In the thereof “ACCEPTED: appear City the names of two streets in the 16, 64 “Date Oct. Hutchins, Texas, following are provisions pro- and conditions of the Ball Maurice “Signature /s/ posal : Ball “/t/ completed: to be “Work Stanley R. E. “Signature /s/ base, “Shape gravel tack con- existing Cooper-Stanley “/t/ liquid asphalt, edges crete Company, Inc.” RC2 lay plant asphaltic 2 inches hot mix 11,000 agree said approximately concrete on area enforceable con- square does not constitute an yards per square yard. @ 82‡ for dam- action factors unde- As cause of tract because it leaves four alleged breach square yards is based number (1) termined: very contract paid, paving, (2) the consideration to be based, (4) cause action is (3) completion, date causes action therefore not sev- payment. are of final con- We overrule this *3 erable, appellee’s judgment the tention, reversal of the agreeing with that for us to reverse sufficiently makes agreement is consti- definite pellant’s entire contract,” in order that the “special phrase is tute a that as Therefore, 79, may at case one time. used Biskamp, in 159 Tex. Meaders v. points passing the cross 75, without Supreme 316 S.W.2d 78. The Court making any finding respect account,” to the suf- in a that case held that "sworn evidence, ficiency vel the sim- 185, non of and T.R.C.P., “applies used in on- ply authority because there no in the ly to is persons, transactions between in which law “the trial of an indivisible cause there purchase is a sale one side and a by piecemeal,” of action Phoenix Assur. personal the other, whereby title 308; Stobaugh, Co. of London v. property passes other, 127 Tex. from one the 428, judg- 94 S.W.2d we the entire the reverse relation of debtor creditor there- is ment and remand the entire case for an- by general dealing created course of other trial. (which may Employers’ also Texas See Ins. only include one transaction 304, Lightfoot, Ass’n v. 139 Tex. 162 between the parties). S.W. It does not mean 2d 929. parties transactions between resting
special contract.” See also McCollum v. Reversed and remanded. May, Tex.Civ.App., 172, 396 170, S.W.2d hist.; no wr. Kirkwood Morgan, Inc. v. REHEARING FOR MOTIONS ON Roach, Rig Bldg. Co., & Const. Tex.Civ. rehearing. App., parties have moved Both wr. ref. n. r. e. the that allowing par in the
There was also between justiciable error all issues settled $1,000. This render attorney’s fee should reverse that we ties and dam Vernon’s Ann. Civ. amount claimed under him for the was St., theory 2226 that main jury. We Art. found appellant for account with Appellee’s against cause of action was on sworn case this. but, 185, T.R.C.P., sub never of Rule was indebtedness claimed judg above, by premise as indicated is unten As shown jury. mitted able; inapplicable. appellee’s motion ment, 2226 Art. the court sustained Press, Tex.Sup. sub charge any was Van Zandt v. Fort Worth before 893; requir Langdeau Bouk This was jury. 359 S.W.2d mitted to . not entitled to night, 162 Tex. 344 was S.W.2d reversal from the withdrawn its claim have part judg- of the these reasons For as matter of by the court decided awarded law, done, entitled to it was as was but is reversed fee of sub involved in its claim the issues have remanded. affirmatively jury. re mitted might in the case order manded points appellee com- By first cross its accomplished. support plains of evidence lack 3,2, Special we Appellant says Issues Nos. in event submission part case jury’s 4 and or the answers thereto. remand should affirm appellee’s claim and point says third cross those answers which involves fa- pre- part great weight were against ponderance of the evidence. vor.
Appellee brought original this suit ly, and if had a claim appellee arising “out of transaction or subject occurrence that is the matter of the claim,” opposing party’s compelled he was 97, T.R.C.P., (a) subdivision of Rule state it as a counterclaim in suit. compul The fact that rule makes it a sory clearly poli counterclaim indicates
cy action, circuity law “to avoid inconvenience, expense consumption trying” court’s such a counter
claim in independent suit. Ulmer v.
Mackey, Tex.Civ.App., 242 S.W.2d e.; wr. ref. r. Bolding Chapman, n. v. Tex.Civ.App., wr. n. r. ref.
e. The entire case must be tried as one case; properly piece tried
meal. It was wrong theory tried on the must, again.
Both motions rehearing are over- ruled.
Douglas HALL, Appellant, Edward TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee. Appeals of Texas.
Austin.