
    WOODLEY v. PIKE.
    (No. 1033.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1916.)
    1. Appeal and Erbob <&wkey;722(l) — Assignments OP ERROR.
    Assignments of error cannot be considered where there is no compliance with Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that assignments in motions for new trial shall constitute the assignments on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. &wkey;722(l)J
    2. Appeal and Error <&wkey;719(4) — Assignments op Error — Fundamental Error.
    Error in litigating an issue involving an element of recovery not pleaded is fundamental, and may be reviewed, though not assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2973, 3490; Dec. Dig. <&wkey; 719(4).]
    3. Judgment <&wkey;18(2) — Pleadings to Sustain.
    The petition of a lessee, seeking to recover a sum of money which he claimed was due him as the proceeds of his one-half share of wheat raised on the demised premises, alleged that approximately 4,400 bushels were raised which was sold for $3,900, and that there was due him the sum of $500. The lessor counterclaimed, and on cross-examination the lessee testified that he received only $800 cash for the wheat. He was shown a check drawn by lessor payable to his order, which had been paid, and he testified that such check represented the proceeds of his one-half share of wheat in an elevator, but did not involve the matter in controversy. There was a judgment for the lessee. Held that, though the evidence showed that the crop sold for more than was alleged in the petition, the judgment was not objectionable on the ground that recovery was based on an element of recovery not pleaded, for the lessor, having introduced the check in support of his defense and counterclaim, cannot complain that the iessee explained that it related to another transaction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 36; Dec. Dig. &wkey;>18(2).]
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Action by W. L. Pike against E. L. Wood-ley, who counterclaimed. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. B. Hill and J. B. Clark, both of Shamrock, for appellant. M. Reynolds, of Shamrock, for appellee.
   HENDRICKS, J.

Pike sued Woodley for the sum of $501, alleged to be due on a breach of rental contract in regard to a certain wheat crop. The claim was that the defendant, Woodley, was to furnish the land, teams, tools, and feed for the teams, the plaintiff to furnish the labor, but the costs for thrashing were to be divided equally between landlord and tenant; that the defendant was to receive the usual and customary rent, alleged to be one-half of the crop. It is further alleged that approximately 4,400 bushels of wheat were produced upon the land which the defendant, Woodley, the landlord, sold for $3,904.04, one-half of which was due the plaintiff, with the exception of $800 paid by defendant to plaintiff, after the sale of the wheat, and $651, which plaintiff admitted that he owed the defendant, leaving an actual balance, according to the allegations, of $501 owing by defendant. Quoting from appellant’s brief:

“Defendant denied there was ever any rental contract, and further says that he made advances to plaintiff in the sum of $1,673.09, all of which was incidental to the transaction; that the total amount paid the plaintiff by defendant was $2,473.09, whereby appellant asks for judgment against appellee in the sum of $521.07.”

The principal ground of alleged error, the best we are able to ascertain, seems to be based upon the following condition: The plaintiff, Pike, while on the witness stand, and under cross-examination by appellant’s counsel, answered that $800 was all he received in actual money for the wheat. He was then handed a check for the sum of $367.76, shown to have been made by Woodley, payable to Pike, and which had been paid, and with reference to which the appellee answered that it was for undivided wheat which they had in the elevator, and which represented the purchase price of his (Pike’s) interest in the same. He further answered that this check had nothing to do with the matter under investigation. Again, on redirect examination, Pike’s counsel asked him about this particular check for $367.76, and the plaintiff answered that it represented another and different division of wheat not included herein, and to which defendant objected that this amount, or matter, was not pleaded in plaintiff’s petition. Appellant’s assignments are wholly insufficient for many reasons, the principal of which is that article 1612, as amended by chapter 136 of Acts of the 33d Legislature (providing that the assignments in the motion for new trial shall constitute the assignments on appeal), is not complied with; but, as an issue litigated and found upon, and not pleaded, when an element of recovery, constitutes fundamental error, the matter is reviewed. It is noted that the defendant in order to set up a counterclaim pleaded generally advances and payments in which the particular check was intended to be included though not specifically mentioned in order to reach the result, as a balance, sued upon. Of course, the element developed the fact that the entire crop sold for more than alleged in plaintiff’s petition, but the matter of settlement affecting the sum of $3,900, collected by defendant upon plaintiff’s petition, only was involved — not so much how many bushels of wheat were sold, but was plaintiff really entitled to any part of the $3,900 mentioned? "When appellant introduced the particular check entering into his counterclaim, appellee had the right to show it was no part of the $3,900 and represented the division and purchase of different wheat, which the $3,900 represented, and could show it under the general denial, and especially considering the agreement made as to objections.

Appellant seems to entertain the view that, because appellee pleaded that 4,400 bushels of wheat brought the $3,900 actually received by appellant for a part of the wheat, it would cut him off from showing, though in rebuttal of defendant’s counterclaim, that the $3,900 was all the 4,400 bushels of wheat brought, and that appellant could charge ap-pellee with the check and thereby reduce the latter’s demand, and include the amount, represented by the check, in the $3,900 charged to have been received and as to which ap-pellee was attempting to make appellant account. The trial court pursued the legal course.

We are unable to consider any of the remaining assignments as such, and the judgment is affirmed. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     