
    Duffard & Hecker v. D. G. Herbert.
    (No. 1757.)
    Appeal from Galveston County.
   Opinion by

Hurt, J.

§ 612. Verdict will not be set aside where evidence is conflicting; case stated. Appellee sued appellants on a quantum meruit for certain services performed by him in managing a pasture, claiming that said services were reasonably worth $200 per month, and that he served for three months. Appellants pleaded specially that the services were performed under a contract which expressly stipulated for the payment therefor at the rate of $20 per month, which had been paid appellee. Appellee recovered judgment for $90 and costs. The evidence in ■ regard to the contract, and the fixed sum stipulated therein for appellee’s services, is conflicting, and sufficient to support a finding either way. Hence, this court will not disturb the verdict and judgment upon the ground that they are against the weight of evidence. In order to justify this court in setting aside a verdict upon this ground, it must clearly appear to be wrong. [Stroud v. Springfield, 28 Tex. 651; Powell v. Haley, id. 53; W. & W. Con. Rep. § 16.]

§ 613. Charge must be confined to the issues made by the pleadings; cause of action not pleaded cannot be recovered upon. The court charged the jury that the plaintiff was entitled to recover the value of certain extra services about which there was evidence, but about which the pleadings were silent. Held, error. Such charge was calculated to lead the jury from the issues made between the parties, and cause them to find for the plaintiff upon a cause of action not pleaded.

February 11, 1885.

Reversed and remanded.  