Opinion
No. 1647.
May 29, 1924. Rehearing Denied June 26, 1924.
Appeal from Eastland County Court at Law; J. H. Jones, Judge.
J. R. Stubblefield, and Chas. C. Robey, both of Eastland, for appellant. Burkett, Orr McCarty, of Eastland, for appellee.
D. M. Howard, appellee, filed this suit against appellant, the Howard Tool Works, a corporation, alleging that on December 29, 1921, he was employed by appellant, and continued in its service until March 18, 1922, at an agreed salary of $60 per week, and that there was a balance due him of $724.41, for which amount he prayed judgment, together with foreclosure of a mechanic's lien upon appellant's equipment, situate upon a described tract of land. Appellant answered by general denial and a special plea in set-off, to the effect that subsequent to March 18, 1922, appellee fraudulently collected and appropriated a claim of the Howard Tool Works against the Gordon Petroleum Company, amounting to $752.10; also a cross-action, not necessary to detail. The court peremptorily instructed the jury to find for the plaintiff in the sum of $694, with 6 per cent. interest from March 18, 1922. The court also submitted some questions in the form of special issues relating to the cross-action. Judgment was rendered in Howard's favor for said sum of $694, with interest, and foreclosure of lien, and against appellant upon its cross-action. This judgment is reversed for the following reasons: (1) The plaintiff sued upon an express contract to pay him $60 per week for his services, and there is no evidence of any such contract. The evidence is perhaps sufficient to sustain a recovery upon quantum meruit, but the pleadings will not support a judgment upon that theory. (2) There is no evidence that the plaintiff is entitled to a lien as a mechanic or otherwise. (3) The court erred in not submitting the issues presented by the defendant's plea in set-off. Reversed and remanded.