Opinion
No. 16631.
April 2, 1965. Rehearing Denied April 30, 1965.
Appeal from District Court, Wichita County, Arthur Tipps, J.
Mitchell Baxter and Titus T. Mitchell, Wichita Falls, for appellant.
Short Smith and Donald E. Short, Wichita Falls, for appellee.
Plaintiff appealed from a judgment non obstante veredicto.
Plaintiff's claim was for money allegedly due her under the terms of an 'understanding * * * set down in writing and executed by the parties * * * upon which written agreement this cause of action is based.'
The issues submitted to the jury were predicated upon plaintiff's testimony which chiefly concerned oral conversations held with defendant or his agent without reference to the terms of the written contract. Defendant objected to the submission of the issues, hence, we do not have here a case falling under Rule 67, Texas Rules of Civil Procedure.
It is well established that a plaintiff who sues upon a contract must recover upon the contract alleged in his petition and if the proof shows a contract essentially different from that alleged he must fail in the action. Ware v. Poindexter Furniture Carpet Co., 131 Tex. 568, 117 S.W.2d 420 (1938); 33 Tex.Jur.2d 573, § 70.
Since an instructed verdict would have been proper, the court did not err in rendering judgment for defendant notwithstanding the verdict.
Affirmed.