Degener v. O'Leary , 85 Tex. 171 ( 1892 )

The appellee, J.P. O'Leary, brought this suit in the District Court of Bexar County, to recover of the appellant, Hans L. Degener, the sum of $268.80 for labor performed and material furnished in plastering a house for L.J. Gembler, which had been contracted to be performed by one Richter, who had executed a bond for its performance, with appellant as surety. The contractor having failed to complete the same, appellant undertook to do so.

Appellant alleges, that he authorized one Schatz to employ some one to complete the work for a sum not exceeding $76; that appellee was employed and did the work, and appellant was ready and willing to pay to appellee said sum of $76, and paid the same into court. The cause was tried April 5, 1889, by jury, and a verdict rendered in favor of appellee for $268.80, with interest from January 27, 1887, at the rate of 8 per cent per annum, upon which verdict the court entered judgment, and from which judgment the appellant, after the order overruling his motion for a new trial, appeals to this court upon the following assignment of error:

"The judgment is contrary to the law and the evidence, in this, that the evidence shows that the defendant had never employed the plaintiff to do any work for him, but that he had authorized one Schatz to employ some one, for the sum not exceeding $76, to do the work, and that plaintiff was employed by said Schatz; and judgment is rendered for the plaintiff against this defendant for a sum largely in excess of the amount the said Schatz was authorized to pay, and which the defendant had never contracted to pay therefor."

Appellee raises the point, that the questions presented by the assignment of error ought not to be considered in this court, because the matters therein complained of were not presented and called to the attention of the court below by a motion for a new trial. The motion for a new trial simply states, that "the verdict is contrary to and not supported by the evidence." Calling the court's attention to the insufficiency of the evidence in this general way has often been held insufficient and too general to be considered for any purpose. The case of Clark Loftus v. Pearce, 80 Tex. 150, is decisive of this question. There it is held, that the matter to be considered in this court must be by a motion for a new trial called to the attention of the trial court; that the effort to correct the error must first be directed in that court.

We conclude the judgment should be affirmed, and so report.

Affirmed.

Adopted June 7, 1892.