54 Tex. 281 | Tex. | 1881
The errors assigned in „ this case are —
1. The court erred in its ruhngs, as shown by bill of exceptions filed.
2. The court erred in its charge to the jury.
3. The court erred in overruling the motion for a new trial.
The motion for a new trial embraces the first and second grounds of error as above assigned, and also that the verdict of the jury is against the law, and that the judgment is against the law and the evidence.
It has .often been decided, both before and since the present rules of this court, that a similar assignment of error to that contained in the second and third above assigned errors, is too general arid indefinite to demand the consideration of the court, unless in case of manifest injustice.
Hence we do not feel caHed on to pass upon these two alleged errors as assigned, and particularly as they are objected to because too general. Fisk v. Wilson, 15 Tex., 430; Trammell v. McDade, 29 Tex., 362; Pearson v. Flanagan, 52 Tex., 266.
We shaU therefore consider only the first assigned error, that the court erred in its rufings as shown by the bill of exceptions, and one other apparent of record.
The biU of exceptions is, in effect, that the court erred, first, in overruling, the general demurrer; second, in permitting witness Paul to testify in regard to the verbal agreement of defendant Green to pay for the material; it
. 1. The petition'in the case sought both a personal judgment against defendant Green, and enforcement of the lien, and though as to the latter, in some particulars, it would have been defective on special demurrer, this could have been cured by amendment, and was, therefore, under our practice, good on general demurrer. Trammell v. Trammell, 20 Tex., 406; Frosh v. Swett, 2 Tex., 485; Prewitt v. Farris, 5 Tex., 370; Warner v. Bailey, 7 Tex., 517; Wooters v. R. R. Co. (decided at present term).
2. Under the testimony, the agreement of defendant Green was not collateral to that of Durland, the contractor, but an original one, and was not of that character required to be in writing by the statute of frauds. Pool v. Sandford, 52 Tex., 637.
The fact that the payments made by defendant Green were upon the orders of Durland is not inconsistent with this view, as on final settlement between Green and Durland they would be vouchers against the latter.
3. There is an error apparent of record. . The judgment is rendered in favor of Josiah Paul, as agent for John Dallaban & Co. This is not warranted by the pleadings. The error, however, can be corrected by the record without injustice to the defendant Green.
The judgment is therefore reversed and reformed in this court so as to be rendered in favor of John Dallahan and Milton Gatlin as partners, under the name John Dallaban & Co., they to pay the costs in and about this appeal expended, and it is accordingly so ordered.
Beversed and reformed.
[Opinion delivered February 15, 1881.]