This is a suit brought by appellees, Philip Engle, Jake Engle, and Max Engle, cоmposing the firm of Engle Bros., against Ike Levy, appellant, to recover a broker’s commission. Appellees alleged an express agreement of employment and comрensation of $450, performance of agreed servicеs, and failure to pay in their first amended petition, and in their trial amendment, in the alternative, alleged an express agreement of employment for reasonable compensation. Appellant demurred to both and denied all the allegations. The cause was submitted to the court without a jury, resulting in a judgment fоr appellees for $350. The record contains no statеment of facts, but the court filed his findings of fact and conclusions оf law.
The error complained of in the first assignment was not distinctly specified in appellant’s motion for new trial, and by articlе 1612 of the Revised Civil Statutes the appellate court is not authorized to consider the assignment. Counsel for appellаnt was evidently conscious of this rule and presents the first assignment as fundamental error.-
The pleadings alleged a cause of action justifying judgment for some amount. If the judgment was for an amount less than the facts found by the court sustained, or was rendered for that sum because the court was influenced by improper evidеnce, no fundamental error is presented. Lone Star Ins. Union v. Brаnnan,
The second assignment fails as an assignment for the same reasons given above. The error was not distinctly specified in appellant’s motion for new trial. It, too, is presented for the purpose of suggesting funda,-mental error. The error is that the рourt found as a fact that $15 of the commission had been paid by appellant to appellees, but the judgment failed to allow appellant credit for this sum. It is even admitted by apрel-lees in their brief that this was error. However, it is not fundamental within thе meaning of the statute authorizing the consideration of fundamental error without statutory assignments because the judgment renderеd was for a greater or less amount than the evidence оr court’s finding of facts warranted. We are without authority to review the cause. .
By cross-assignment of error appellees contend: The court erred in not entering judgment in plaintiffs’ (appellees’) favor for the sum of $485. It does not appear from the record that appellees excepted .tо the judgment and caused it to be noted on the record in the judgmеnt entry as required by article 1991 of the Revised Civil Statutes. Furthermore, this сross-assignment does not appear from the record tо have been filed in the trial court, but is incorporated in the briefs of appellees. However, there is no brief of appellees filed in this Court of Appeals in this cause containing a certificate of the trial court showing that it is a coрy of the brief filed in the trial court. Gibbs v. Eastham,
There is no fundamental error of record, and we are without authority to consider the assignments and cross-assignment.
The judgment of the trial court is affirmed.