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 1916-12

Benson v. Ashford , 189 S.W. 1093 ( 1916 )


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  • We were in error in stating in our former opinion that plaintiff in error specially excepted to the petition of defendants in error in that it did not allege performance of the contract on the part of defendants in error, and that opinion is here withdrawn. We, however, overrule plaintiff in error's motion for rehearing, believing that the judgment should be reversed for fundamental error appearing upon the record.

    Defendants in error brought suit to recover on certain notes executed by plaintiff in error, and also to foreclose a mechanic's lien which they claimed to have by virtue of an alleged contract. The contract referred to purports to be the contract of both parties, but is signed by Eula Benson alone. The defendants in error did not allege that *Page 1094 they had performed any part of the contract, which provided that they should build a house for plaintiff in error according to certain specifications therein set forth. The alleged contract was attached as an exhibit to the petition.

    "As a general rule, a written agreement cannot be said to be a completed contract until signed by all parties to it." 9 Cyc. p. 299.

    The exception to this rule is where the party not signing the contract has accepted and acted upon the same. Martin v. Roberts, 57 Tex. 564; Campbell v. McFadin, 71 Tex. 28, 9 S.W. 139; 9 Cyc. p. 300. There is no statement of facts in the record, but, as defendants in error did not allege performance of the contract on their part, no evidence as to such performance could have been legally received, or, if received, could have been the basis of a judgment. Osvald v. Williams, 169 S.W. 185; York v. Lumber Co., 169 S.W. 187; Railway Co. v. Brown, 173 S.W. 943; Nalls v. McGrill, 184 S.W. 275.

    The court rendered judgment foreclosing the mechanic's lien, and, there being no pleadings upon which any evidence could have been introduced to sustain such judgment, the motion for rehearing is overruled, and the judgment of the trial court is reversed, and the cause remanded.

    Reversed and remanded.