I dissent from the view of the majority in holding that, appellant’s assignment, complaining of the excessiveness of the verdict, is too general, and in refusing to consider the same. This assignment (paragraph 20 of appellant’s motion) is that the court erred (in rendering judgment against appellant) because the verdict is grossly excessive, ‘,‘in that the uncontroverted evidence shows that the plaintiff’s services for the defendant were not worth more than $10, or in any event only a nominal sum.” In my opinion, the assignment is sufficient to direct the attention of the court to the error complained of, and complies in a substantial way with the rules and with article 1844, R. S. 1925. The meaning of the assignment is that the verdict is excessive because the uncontro-verted evidence shows that plaintiff’s services were worth less than the amount found by the jury. If this be true, that is, if the uncontroverted evidence shows an excessive verdict, the case should unquestionably be reversed. Appellant was not, in my opinion, required to do more than to specify the ground relied upon with sufficient distinctness to direct the attention of the court to the error. Whether or not appellant’s contention is correct will depend upon how well it is supported by the statement, authorities, and argument. Evidence should not be recited in an assignment, its proper place being in a statement supporting the assignment.
The assignment under consideration is no more general nor less specific than the assignment held sufficiently specific by the court in St. Louis, etc., R. Co. v. Kelly (Tex. Civ. App.) 173 S. W. 540, 541, where the assignment, based on the action of the court in retaxing costs, was “that the testimony fails to support the findings of fact which the court determined to be ‘good cause’ to adjudge all costs against the company.” In First State Bank v. Knox (Tex. Civ. App.) 173 S. W. 894, 897, the court held sufficient “an assignment that complains that the verdict of the jury and judgment of the court is contrary to the law and evidence because there is no evidence to establish a fact necessary to sustain said judgment.” No difference, in legal sufficiency, can be found between an allegation that the testimony fails to support a finding of “good cause” for taxing cost, and a finding that there is no evidence to establish a fact, as in the assignment just quoted, and the assignment under consideration, specifying that the uncontro-verted evidence shows an excessive verdict. In each case, the challenge goes to the foundation of the verdict: In one, that the evidence fails to support the finding; in the other, that there is no evidence to establish the fact found; and in the case under consideration that the uncontroverted evidence shows an excessive verdict.
In Morrison v. Neely, 231 S. W. 728, 730, the Commission of Appeals (reversing the Court of Civil Appeals, 214 S. W. 586), in an opinion by Judge Kittrell (approved by the Supreme Court), announced a rule by which to test the sufficiency of an assignment. The court said: “When article 1612, R. S. 1911 [now article 1844], relating to the filing of assignments of error, was amended by the act of 1913 (V. S. R. S. art. 1612), after prescribing what is necessary to be done by an appellant, the provision was added, ‘but an assignment shall be sufficient which directs the attention of the court to the error complained of,’ which clearly indicates that the statute Should be liberally construed, and it has been uniformly so construed. The principle upon which this court has acted in *710passing upon the question is clearly stated in [Clarendon] Hand Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105. * * * ”
In Clarendon Land, etc., Co. v. McClelland, 86 Tex. 179, 187-192, 23 S. W. 576, 1100, 1103, 22 L. R. A. 105, Judge Gaines, reviewing the decisions of the Supreme Court from the beginning, announced the following doctrine:
“It is to be borne in mind that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions. It is certain that it was never intended to hedge either the courts of civil appeals or the supreme court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts.
“Where an assignment of error is sufficiently specific to enable the court to see that a particular ruling is complained of, it should be held good, although it should fail to state the reason why such ruling is claimed to be erroneous. An assignment may be brief, and yet specific; and brevity, in such cases, is commendable, and accords with good practice. The reasons by which allegations of error are sought to be sustained find their proper place in the propositions, statements, and authorities required to be set forth in the brief under and in support of the respective assignments.”
To the same effect, see Temple, etc., Co. v. Pineland, etc., Co. (Tex. Civ. App.) 25 S.W.(2d) 675, 676, and Torres v. Kansas City, etc., R. Co. (Tex. Civ. App.) 35 S.W.(2d) 229, 230.
In the light of these authorities, I am of opinion that the assignment directs the attention of court to the error, and hence is in compliance with the statute and the rules of court.
Furthermore, I am of opinion that the question as to the excessiveness of the verdict should have been reviewed as fundamental error, because obvio.usly the case was tried on a wrong theory. Plaintiff’s cause of action as pleaded is, in short, that he was employed by defendant, Mrs. Dreeben, to recover a certain tract of land consisting of 80 acres theretofore qualifiedly sold to Dallas county by defendant and her deceased husband, Israel Dreeben. Plaintiff set out in haee verba the written contract between the Dreebens and the county, which it seems plaintiff construed to be a conveyance of an interest in real estate. He alleged, among other things: “That on or about October 1, 1928, defendant consulted this plaintiff with reference to the recovery of a certain tract of land, consisting of 80 acres situated in Dallas County, Texas, from Dallas County, to which municipality said tract of land had been qualifiedly sold by the plaintiff and her deceased husband, Israel Dreeben, on the 2nd day of October, 1920, for a consideration of $30,000 * * *. That as a result of said consultations with reference to the matter, defendant retained the plaintiff, and requested him to do any and all things that might be necessary to release and recover the tract of land described in said above set forth contract from the terms of said contract and reinvest in the defendant title thereto * * Plaintiff alleged different efforts put forth by him, resulting in the approval of an order by the commissioners’ court, agreed to by defendant, to the effect “that the defendant should have a reconveyance of said 80 acres, for which the county had paid $30,000 * * Plaintiff further alleged that, “When it was suggested by this plaintiff, that one-fourth of the land recovered, or one-fourth of its value would be a reasonable fee, the defendant worked herself up into a terrible rage or simulated r&ge, and said that she would have nothing to do with the matter and left this plaintiff’s office, * * *an(ij further, “Plaintiff alleges that said land is of the market value, the reasonable value and the actual value of $40,000. This plaintiff alleges that the services rendered were reasonably worth one-fourth of the value of the land recovered or one-fourth of the land so recovered,” wherefore he prayed judgment for $5,000.
From these allegations, it is apparent that plaintiff’s theory as to his employment by defendant was to recover from Dallas county 80 acres of land theretofore qualifiedly sold to the county of Dallas by the Dreebens, and that the reasonable value of the services rendered by him was a percentage of the full value of the land. The statement of facts shows that the evidence adduced, as to the-value of the plaintiff’s services, supports this theory. Among other things, plaintiff testified: “I told her (defendant) the contract (with the County) was an outright sale of the land, a conditional conveyance, and that it would be difficult to get the County to release it, in as much as they were getting gravel out of it * * In discussing the matter of compensation, plaintiff testified that he said to defendant: “Now, Mrs. Dreeben, I have been representing you in this matter and we never have discussed the fee, and I asked -her what she thought would be a reasonable fee in the matter, and she said she did not know and she asked me then what I thought would be a reasonable fee, and I then asked her what the valuation was that she put on the property that I got released under the order, and she said she *711would not sell it, and I then asked her if it was worth $40,000, or $500 an acre, and she said it was worth that and would not sell it for that price; so then I told her it was usual and customary for an attorney collecting a debt before the Probate Court, where no contest was had to charge ten per cent of the amount collected, and Mrs. Dreeben said no she didn’t expect that it would cost that much; that she did not have any money, and would have to give a note if it would cost that much; so I then told her I would take an interest in the land and make out a note secured by a deed of trust on the property which I had released, and she said, no she wouldn’t even do that. ' * * * ”
Mr. Tom Clark, the attorney who represented the county during the time plaintiff was endeavoring to secure the order releasing the Dreeben land from the gravel contract, and therefore was more or less familiar with the services rendered by plaintiff, combining this knowledge with his knowledge as an expert, testified in regard to the value of plaintiff’s services, on the idea that the land was worth $55,000; he said: “Assuming that the land he was seeking to release was worth $55,000, I would say that a reasonable attorney fee for the services performed that I testified about, on a contingent basis, would be ten per cent for the result obtained by Mr. Whitehurst.”
Mr. W. B. Harrell, an attorney, testifying as an expert in answer to a hypothetical question in which was embodied the fact that the land was worth $55,000, said: “I would say that a reasonable fee for that service by that attorney as to percentage of the amount in controversy would be as follows: I would say that ten per cent, of the value of the recovery would be a modest fee; that fifteen per cent, would be a reasonable fee, and that twenty per cent, would be a good fee.”
Judge Cecil Simpson also testified as an expert in answer to the hypothetical question, in which the value of the 80 acres of land was stated to be forty, fifty, or fifty-five thousand dollars; he said: “I would state that ten per cent, would be a reasonable fee on the reasonable cash value of the property, if that is the way you want to fix it. Where the services were rendered, and here are the fruits of the service, and in this particular ease knowing all of the parties as I do, I would think fifteen per cent, would be a very low fee. I am familiar with the whole transaction and drew the contract mentioned * * *»
Thus the conclusion is inescapable that plaintiff not only alleged his employment to be for the recovery of land, and that he was entitled to be compensated for services' rendered on the basis of the full value of the •land, but all testimony adduced as to the value of his services is in support of that idea.
In the majority opinion, however, it is held that the written contract between the Dree-ibens and the county of Dallas was not a conveyance of real estate at all, but simply a sale by the Dreebens to Dallas county of 70,-000 cubic yards of gravel.- In the course of the discussion, Judge Yaughan propounds this question: “Did the sale of the 70,000 cubic yards of gravel vest in Dallas County an interest in the real estate from which said-gravel was to be removed?” After a short discussion, he answers the question as follows: “Therefore, we are of opinion that said conveyance only evidenced a sale of a chattel in the form of 70,000 cubic yards of gravel.” In the majority opinion, it is further held that the order of the commissioners’ court, releasing appellant’s land from the gravel contract, was in no sense a conveyance of real estate. The latter holding is a necessary corollary to that preceding, to the effect that the instrument executed by the Dreebens did not convey real estate, but was simply the sale of a chattel. On this point the opinion states that: “The instrument executed as a release by the Commissioners Court, acting for Dallas County, was not for the purpose of conveying title to real estate then vested in Dallas County, but to release the record effect of the conveyance of the 70,000 cubic yards of gravel made by defendant and deceased Dreeben to Dallas County * * * as said act on the part of the Commissioners Court in executing said release did not in any respect involve a conveyance of title to real estate then owned by Dallas County.” I am in accord with this construction of the gravel contract and the order of the commissioners’ court releasing the same, but this characterization of the documents demonstrates that the case, as made by the evidence, is not the case pleaded by appellee, and that the trial was had and the value of appellee’s services were measured on a wrong theory.
These conflicting theories appear also in the briefs of the parties. Accepting appellee’s theory of the case, that is, that his employment was for the recovery of land, or an interest therein, appellant contends that appellee failed in that undertaking, in that, the order of the commissioners’ court adopted at his instance, was insufiicient as a conveyance of real estate within the’ meaning of article 1577, R. S., to reinvest title to land. Replying to this contention, appellee argues correctly (but in doing so assumes a position inconsistent with his theory of the case as plead) that the gravel contract between the Dreebens and the county is a “contract for the sale of a certain fixed amount of gravel to he removed either presently, within a fixed time, or when the time is not fixed, which would be construed into a reasonable length, as the contract before this court — that sort of a conveyance is the sale of a chattel, and the incidental right to go upon the land to *712remove the gravel, makes of it no more a sale of real estate than my sale of a horse situated on my farm, with the promise that yon should have the right to go on my farm to get the horse.” This shifting of position illustrates the incorrectness of the theory on which the case was tried, and the fact that it was thus tried tended to produce, if it did not actually do so, an excessive verdict. The doctrine is well settled that the error in trying a case on a wrong theory is fundamental and requires reversal. National Union, etc., Co. v. Patrick (Tex. Civ. App.) 198 S. W. 1050; Otis Elevator Co. v. Cook (Tex. Civ. App.) 219 S. W. 546, 547; Stallings v. Wood (Tex. Civ. App.) 267 S. W. 537, 539; Bason v. Bason (Tex. Civ. App.) 260 S. W. 687, and authorities cited.
I think the question as to the excessiveness of the verdict should have been reviewed, and because a wrong theory prevailed that the case should have been reversed and remanded.