Lov Vorn v. Wilkinson

ALEXANDER, Justice. The plaintiff, P. H. Lov Vorn, alleged, in substance, that he entered into an oral agreement with A. J. Wilkinson, by which plaintiff, for a consideration of $6,200, agreed to erect for Wilkinson certain improvements consisting of a filling station, tourist cabin, and coffee shop; that, before the foundation of the first building was completed, the original contract was wholly abandoned and a new agreement entered into, by which plaintiff was to erect other and different improvements on the same lots and that no agreement was made as to the price to be paid by Wilkinson for the erection of the latter improvements. He sought to recover the reasonable value of the labor and material used in erecting the improvements. The defendant, in addition to a general denial, alleged that the original contract was never abandoned but that it was merely modified in certain particulars and a new agreement entered into as to the price to be paid by Wilkinson for the esttra labor and material required for the completion of the extras and changes provided for in, the new agreement; that Wilkinson had paid the full price provided for in the new agreement, except $300; that, by reason of plaintiff’s failure to complete the contract in accordance with the agreement, Wilkinson had been damaged in the sum of $319, and that as a result the defendant was not indebted to plaintiff in any sum. A trial before a jury resulted in judgment for the defendant. Plaintiff appealed. Special issue No. 1, as submitted to the jury, was as follows: “Do you find from a preponderance of the evidence that the original contract between the plaintiff and said A. J. Wilkinson was wholly abandoned after work was begun on the building in question and on or about June 25, 1-934, by mutual consent by both parties thereto?” To which the jury answered “No.” Other issues were submitted but the jury was told not to answer any of the other [750] issues in the event of a negative answer to the foregoing special issue No. 1. No objection was made in the lower court to this manner of submitting the case. In keeping with the instruction of the court, none of the other issues were answered by the jury. Appellant now contends that the evidence was insufficient to support the jury’s finding that the original contract had not been abandoned. Under this assignment and the propositions submitted in support thereof, appellant makes the general statement that the undisputed proof showed that certain material changes were made in the designs of the buildings to be erected and the materials to be used in connection therewith, which changes amounted to an abandonment of the original agreement, but he makes no attempt to quote the testimony or to give the substance thereof, and he makes no reference to the statement of facts where the evidence may be found. Of course, whether or not the original agreement was abandoned would depend upon the facts of the case. Court of Civil Appeals rule No. 31 requires appellant to support his propositions by appropriate statements from the evidence and ,to verify same by reference to the page of the record where same may be found. This rule is particularly applicable where the appellant challenges the sufficiency of the evidence to support the verdict, and it is very generally held that, upon a failure to comply with this rule, such assignments and propositions will not be considered. 3 Tex.Jur. 901; Threadgill v. Fagan, Tex. Civ.App., 64 S.W.2d 405; Ford Motor Co. v. Whitt, Tex.Civ.App., 81 S.W.2d 1032, 1033, syl. 1; Garza v. Jennings, Tex. Civ.App., 44 S.W.2d 1016, syl. 4; Traders & General Ins. Co. v. Patton, Tex. Civ. App., 92 S.W.2d 1083, 1084, syl. 2. It has long been the policy of this court to ignore technicalities and dispose of all cases on their merits where possible, and, as a consequence, we have usually overlooked infractions of the rules regulating the preparation of briefs; however, in this case the statement of facts covers 218 pages and, in our opinion, it would be an abuse of discretion for us to spend, the amount of time that would be necessary to read the entire statement of facts and cull therefrom the pertinent facts thereof. We therefore overrule this assignment, In view of the fact that plaintiff failed to establish a right to recover on the theory alleged in his pleadings, the trial court properly entered judgment for the défendants. The judgment of the trial court is affirmed.