E. Barrow, appellee, a paving contractor, recovered judgment against J. P. Dueitt *215 for the balance due on an oral contract for personal services rendered, labor done and materials furnished in the amount of $1373.62, and for $769.88 for additional •extra work, plus $600.00 attorney’s fees.
Dispute arose over the exact amount due and owing to the appellee contractor by appellant. The appellant does not contest on appeal the correctness of the trial court’s award оf $1373.62, being the balance due under the original oral contract for paving work. The appellant predicates his appеal •on two points, the first being that the trial •court erred in awarding judgment for the sum of $769.88 for additional extra work because such sum was awardеd on a theory not supported or raised by the appellee’s jpleadings.
The trial court found that the parties entered into a subsequent oral contract whereby the appellee contractor would furnish the appellant additional extra services, labor and material; that such services, labor .and material were, in fact, furnished; that there is due and owing to appellee contractor the sum of $769.88 for the additional extra work; and that such amount is the fair and reasonable market value for the sаme. Appellant contends that the .appellee contractor plead an open account for the extra work and that such pleading •cannot support a judgment for extra work based on an oral contract.
A pleading which sets forth а claim for relief shall contain a statement of the ■cause of action, shall give sufficient notice of the claim involved аnd must contain a -demand for judgment for the relief to which the party deems himself entitled. Rule 47, Texas Rules of Civil Procedure. All pleadings shall be construed so as to •do substantial justice. A variance between •the pleading and the proof must be substantial, misleading and prejudicial to be fatal. Rule 45, T.R.C.P.; Glen Falls Insurance Co. v. Vetrano, C.C.A., n. w. h.,
Appellee contractor plead that he furnishеd additional services, labor and material to the appellant upon an open account at the special instance and request of the appellant and then proceeded to itemize the labor, materials and services rendered. Appellee contractor testified during the trial, without objection, that the appellant requested him to do the extra work and agreed to pay for it, and then testified as to the value of such services. He did not rely on the verified account for the proof of the value of the labor done or materials furnished. We hold that the appellee’s pleadings and his proof were sufficient to apprise the appellant of the nature and theory of the plaintiff’s cause of action. Appellant’s first pоint is overruled.
Appellant, in his second point, contends that the trial court erred in awarding attorney fees of $600.00 in that the judgment was based on oral contracts which did not provide for attorney fees. Article 2226, Vernon’s Ann.Tex.St, provides that:
“Any person having a valid claim аgainst a person * * * for personal services rendered, labor done, material furnished, * * * or suits founded upon a sworn account оr accounts, may present the same to such person * * *; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person * * *, he may аlso recover, in addition to his claim and cost, a reasonable amount as attorney’s fees, if represented by an attorney.”
Appellee’s claim for labor and material furnished was greater than the amount awarded by the trial court. If we understand appellee’s contention he argues that attor
*216
ney fees cannot be awarded under Article 2226, V.A.T.S., because appelleе’s claim is based upon oral contracts, the breach of which by the appellant does not entitle appellee to attorney fees under Article 2226. Appellant cites as authority for this contention Meaders v. Biskamp,
The appellant does not raise аny objection to the necessary preliminaries under Article 2226, such as notice, time, proof of the amount, or the represеntation by an attorney, but contends that the award was based upon a breach of contract and under a strict construction оf Article 2226, V.A. T.S., appellee cannot recover his attorney fees. No cases have been cited that are determinative of appellant’s contention. Article 2226 does not exclude an award of attorney fees where the cause of аction is based upon an agreement or an oral contract to furnish materials or labor. The criterion is not that the claim bе based upon contract or sworn account, but that the claimant or debtor takes the proper steps as outlined under Artiсle 2226 for recovery of a judgment, and that the claim must be based upon the specific items within the meaning of Article 2226. Ferrous Products Cо. v. Gulf States Trading Co. (1960),
The judgment of the trial court is affirmed.