Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 448
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448 TEXAS & ST. L. R'Y Co. v. Ross & Co. [Tyler Term,
Opinion of the court.
A trial was had at the September term of Smith county district
court, 1882, and the court in its charge, having withdrawn the items
of damages for breach of contract and estimated profits on work
not done from the consideration of the jury, they returned a verdict
in favor of Ross & Co. for the sum of $10,054.16. A motion
for a new trial was made, and on plaintiffs' entering a remittitur for
$1,819.25, the motion was overruled and the railway company gave
notice of appeal.
WTVitaker & Bonner, for appellant, on the admission of evidence,
cited: 1 Greenleaf, §§ 82, 84, 98, 117 and 119; Wharton's Ev., §§ 141,
238, 240, 245, 686, 678; Cole v. Dial, 8 Tex., 349; Townsend v.
Coleman, 18 Tex., 420; S. C., 20 Tex., 820; Underwood v. Parrott,
2 Tex., 168; Burleson v. Goodman, 32 Tex., 229; Kotwitz v. Wright,
37 Tex., 82.
W. S. Ilerndon, for appellees.
WILLIE, CIIEF JUSTICE.--Tle special exceptions to the petition,
made the subject of the first assignment of error, are not well taken.
The vagueness in the petition, to which the fourth special exception
is taken, consists in a failure to state the time and place of the performance
of the work and the person by whose direction it was
performed. Any defects as to the time and place of doing the work
are supplied by the bill of particulars made part of the petition.
Such exhibits are, by the rules prescribed for the district courts, attached
and referred to in aid and explanation of the allegations of
the petition. Rule 19. They make more certain and definite what
is properly alleged in a general manner in the pleading to which
they are attached, and fix more accurately and definitely the import
of such allegations. Burks v. Watson, 48 Tex., 114. As to
the failure to state by whose direction the work was performed, or
what engineer allowed any item in the exhibit, an averment of
either character would have been superfluous, and there was no necessity
to use any particularity, whatever, in making the unnecessary
allegations. So the work was done at the express or implied
request of the defendant company, the latter was liable for its value,
and the plaintiffs were not bound to allege their evidence of that
fact; and, if they did so, need not have stated it with any particularity.
Plaintiffs were not allowed to recover on the McGreeny
account; hence, there is no necessity of noticing the exception taken
to the manner of stating it in the exhibit.
The important point in the case arises under the bills of excep
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/470/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .