
    CONLISK v. COLLINS.
    (No. 5888.)
    (Court of Civil Appeals of Texas. Austin.
    March 13, 1918.)
    • Trial <&wkey;350(3) — Special Issues — Submission.
    It is not error to refuse to submit special issues, when such issues are not raised by the pleadings.
    Appeal from Bell County Court; M. B. Blair, Judge.
    • Action by T. H. Collins against J. B. Con-lisk. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. D. Dyess, of Houston, for appellant. J. B. Talley, of Temple, for appellee.
   JENKINS, J.

This suit was brought by appellee on an itemized account to recover for certain lumber alleged to have been sold and delivered by him to appellant at an agreed price. Appellant admitted that he received the lumber, but denied that he purchased the same. He alleged that it was left with him by appellee for sale at the best price attainable, and that after paying the freight and other expenses incident to selling the same there was due appellee on said lumber only the sum of $60. Appellee pleaded in reconvention for a pump, $50, and a belt, $20, which he alleged he had sold and delivered to appellant. Appellant admitted the charge for the pump, but denied that he had received the belting, or that the same had been shipped to him according to his contract with appellee.

In response to special issues submitted to them, the jury found that the lumber had been sold and delivered to appellant as alleged by appellee, and that the belting had not been shipped according to contract. The evidence sustains the finding of the jury. Such being the fact, if no material error was committed on the trial, the judgment of the trial court must be affirmed.

The court did not err in refusing to submit the special issues requested by appellant, for the reason such issues were not raised by the pleadings. The argument of counsel complained of was not such as was calculated to influence the jury to render an improper verdict.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.  