Fleming-Stitzer Road Bldg. v. Boyett

On Motion for Rehearing and to Certify. Appellee seems to misunderstand the basis of the ruling by the majority in this case.

It is not our intention to hold that an original contractor, for the construction of a public building or work, cannot be held liable upon his bond to persons laboring for or furnishing material to an independent subcontractor. Upon the contrary, we think that under proper pleadings and evidence the original contractor may be so held by virtue of articles 6394f et seq. Vernon's Sayles' Revised Statutes. Fennell v. Portland Cement Co. (Tex. Civ. App,) 209 S.W. 796; Mankin v. U.S., 215 U.S. 533, 30 S. Ct. 174, 54 L. Ed. 315. There is no disagreement between the majority and the Chief Justice upon that proposition.

The trouble with the appellee's case is that the pleadings will not support a recovery upon that theory. He sought to recover upon an entirely different theory as is pointed out in the original opinion. It is elementary "that a recovery cannot be had on a cause of action not alleged in the pleadings, however well it may be supported by proof." Middlebrook Bros. v. Zapp, 73 Tex. 29, 10 S.W. 732. In the opinion of the majority the pleadings in this case are wholly insufficient to support a judgment based upon article 6394f et seq.

So far as the motion to certify is concerned it is overruled because: First, it is not in conflict with the cases relied upon by appellee; second, the jurisdiction of this court being final, the dissent filed does not require certification. Herf v. James, 86 Tex. 230, 24 S.W. 396; Sellers v. Puckett (Tex. Civ. App.) 180 S.W. 639; Kidd v. Rainey,95 Tex. 556, 68 S.W. 507.

Both motions are overruled.