Miller v. Keyes

HUGHES, Justice.

Additional assignments are made in this motion to the effect that we erred in holding that the pleadings sufficiently alleged that the failure to pay the flat rate caused the loss of crops on the thirty-acre tract and the damage to the sixty-eight-acre tract.

In addition to the construction of the pleadings given in our original opinion, we add:

Special Issues Nos. 3 and 4, submitted to, and answered affirmatively by, the jury read:

“Do you find from a preponderance of the evidence that the plaintiff’s failure to pay the Flat Rates prior to April 18, 1946, occasioned the loss of the crop production on the thirty acres of land involved?”

“Do you find from a preponderance of the evidence that the plaintiff’s failure to pay the Flat Rates prior to April 18, 1946, occasioned the loss of the crop production on the approximately 68 acres of land involved ?”

These issues were not objected to on the ground that they were without support in the pleadings. Nor was any assignment of trror made in this court by appellant that the trial court erred in admitting evidence relative to these issues. These issues were, therefore, tried by consent, and the lack of pleadings, if any, is immaterial. Rule 67, Texas Rules of Civil Procedure; Tew v. Griffith, Tex.Civ.App., 187 S.W.Zd 408 (writ ref. WOM) ; Daugherty Grain Co. v. Oates, Ft. Worth, Tex.Civ.App., 191 S.W.2d 804.

The motion for rehearing is overruled.

.Overruled.