H., E. & W. T. R'y Co. v. Snelling

Citations

• 59 Tex. 116
• 1883 Tex. LEXIS 117

Syllabus

<p>1. Mistake.— Though a stated account will ordinarily be held conclusive between the parties, yet when their condition has not been so altered by the settlement made,' or attempted, as to render it inequitable, the account may be reopened and corrected, on account of mistake, omission, accident, fraud Or undue advantage.</p> <p>2. Contract.— When in the performance of a contract for work its stipulations are deviated from by mutual agreement of the contracting parties, the contract prices govern, if applicable; but if the deviation relates to extra work not provided for in the contract,.-the party performing the work may recover on a quantum meruit.</p> <p>3. Practice in submitting special issues. — The statute (R. S., 1330-1333) does not contemplate that in a case where many issues are involved, one single issue may be submitted; but on the-contrary, when a special verdict is taken, it should be on all the issues necessary to a proper judgment on the whole case.</p> <p>4. Assignment ok errors.— An assignment of errors as follows: “ the court erred in not granting a new trial; the evidence did not warrant a finding in excess of $7,500,” is too general to entitle the appellant to an examination in the supreme court of complicated and contested accounts.</p> <p>5. Auditor. — The appointment of an auditor is so entirely within the discretion of the district court, that a refusal to make such an appointment would only be revised on appeal, if at all, when a gross abuse of discretion is shown.</p>