32 Tex. 712 | Tex. | 1870
An agreement was entered into between the plaintiff and defendants, wherein it was stipulated that the defendants were to furnish machinery, implements and subsistence for hands, and the plaintiff give his services. The purpose of the contract was to sink oil wells on Padre Island, The proceeds of the work, should there be any, were to be divided in the proportion of one-eighth part to the plaintiff and seven-eighths part to the defendants. The plaintiff alleges that he labored five months at tlie business, and that defendants failed to contribute to the enterprise as agreed between the parties, and the work was abandoned; and he sues for $1000, alleging his services to have been worth that amount, and that the defendants, by withholding supplies, made it necessary to abandon the work. Suit was commenced by attachment; and certainly a very large amount of property was attached to secure the debt. The defendants replevied the property before sale, and claimed in reconvention of damages. They moved on the trial to dismiss the attachment, but their motion was overruled. They objected to the testimony of Nixon on the ground that he was on the attachment bond, and therefore interested in the suit. The objection was overruled. Trial was had, and resulted in verdict and judgment for the plaintiff in the sum of $520.
It is further insisted that this was not a proper case for attachment ; the parties having entered into a special agreement, by which a special compensation was provided for plaintiff’s services, none other could be resorted to, and plaintiff could not recover upon a quantum meruit. This rule would obtain in
But there was no statement of facts agreed to by the attorneys, nor certified by the judge, until after the term, and for this reason the appeal must be dismissed. (Poset., Art. 1581.) The judgment is affirmed, with damages and costs.
Affirmed.