W.A. Williams Construction Co. v. C.W. Hubbard Electric Co.
Opinion
OPINION
C.W. Hubbard Electric Company, as plaintiff below, sued W.A. Williams Construction Company, as defendant below, for debt — the balance of an account for electrical labor and supplies. The account and contract were attached to the petition and sworn to. Defendant answered, denying the debt and plead accord and satisfaction. Trial was to the court without a jury and the court rendered judgment for the plaintiff, from which defendant perfects this appeal to this Court.
Defendant’s first two points, which it groups together, urge error in admitting certain exhibits because they are without support in the pleadings, and because “there is a fatal variance between the pleadings and the proof offered by such exhibits.” Basically, plaintiff contends defendant waived its objection by not filing special exceptions to plaintiff’s pleadings, and that, in the absence of such exceptions, pleadings are to be liberally construed, citing Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907, 925 (Tex.Civ.App.—Waco 1979, no writ), and other cases.
We have no quarrel with this statement, and accept it as Texas law. However, Exhibits 2 thru 8, and 10 thru 20 were accounts plaintiff contended were due and owing, but were not sued on.1
As stated herein, plaintiff’s suit was “for the balance of an account ... particularly set forth in the contracts and accounts attached.” While some contracts, invoices and extra work orders were attached, none of those set out in the footnote were attached, and none of the “Extra Work Orders” were signed as approved by defendant at the place indicated on the printed [798] form. How then could defendant be apprised of plaintiff’s contentions, satisfactorily to prepare its defense, if such it had? See the following authorities: Cannan v. Varn, 591 S.W.2d 583 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n.r.e.); Jay Fikes and Associates v. Walton, 578 S.W.2d 885 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.); State v. F & C Engineering Company, 438 S.W.2d 647 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.); Gunnells Sand Company v. Wilhite, 389 S.W.2d 596 (Tex.Civ.App.—Waco 1965, writ ref’d n.r.e.); Tex.R.Civ.P. 47, 67, and 301; and 46 TEX.JUR.2d 163, Pleading § 270 (1963).
For the reasons stated, we reverse the judgment of the trial court and remand this case for a new trial.
Reverse and Remanded.
Footnotes
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658 S.W.2d 796 (W.A. Williams Construction Co. v. C.W. Hubbard Electric Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.