Opinion
January 23, 1913. Rehearing denied February 19, 1913.
Appeal from Harris County Court; Clark C. Wren, Judge. Suit by L. S. Green against T. F. Loftus.
Judgment for plaintiff, and defendant appeals. Affirmed.
Fisher, Sears Campbell, of Houston, for appellant.
Baker, Botts, Parker Garwood and Walter H. Walne, all of Houston, and Beall, Kemp Parker, of El Paso, for appellee.
This is a suit by L. S. Green against T. P. Loftus for the recovery of $332.50, the balance due upon a verbal contract between the parties, under which plaintiff architect was to prepare plans for the erection of a two-story brick building in the city of Houston, procure bids therefor, and to superintend the construction thereof. The appellant's first and second assignments of error raise the same question, viz.: The court erred in overruling defendant's first and second special exceptions to plaintiff's second amended original petition. The exceptions charged that the said pleading set up a new cause of action, and, if so, the petition upon its face showed that the same was barred by the two-year statute. These questions were adjudicated by the Court of Civil Appeals of the Fourth Supreme Judicial District (Green v. Loftus, 132 S.W. 502) and the Court of Civil Appeals of First District, 104 S.W. 396, holding contrary to appellant's contentions. We concur in their opinion; therefore overrule the assignments. The third assignment complains of the court's charge, and the fourth assigns error in the refusal of special charge No. 3; and the fifth and sixth charge error in court's failure to charge as suggested by appellant's special charges Nos. 2 and 3. We find no error in the charge of the court as given, and cannot agree that it was error for the court to refuse the special charges requested by the defendant. All the assignments are therefore overruled, and the judgment of the lower court affirmed.