This is an action brought by appellee, Rogers Asbestos Company, Inc., against appellant E. P. Bryan for the balance due on a written contract entered into by the parties, wherein appellee agreed to furnish' and apply Carey 12” Hexagonal shingle roof to the deck of an apartment building, according to the manufacturer’s specification, for the price of “time and material, not to exceed the süm of $325.”
The record comes to this court without a statement of facts, appellants’ application for a continuance, or order of the trial court on appellants’ special exceptions, all of which are germane to the assignments and propositions urged by appellant on this appeal, and without which this court is unable to determine the merits of appellants’ contentions.
Appellees’ petition evidently is sufficient as against a general demurrer, and there appears in the record no fundamental error; hence the presumption must be indulged in favor of the actions of the trial court. No speculation on the part of this court, to reverse the action of the trial court in overruling appellants’ application for continuance, can be entertained, since it may have rested on some ground unknown to this court and not capable of being known, in the absence of the motion. 3 Texas Jurisprudence, 352. The order overruling appellants’ special demurrers to appellee’s petition not being in the record, the assignments germane thereto can*258not be considered, as it must be concluded ■ that tbe demurrers were waived. This court cannot assume error in tbe trial court in reference to matters not before it, and, no-statement of facts being in tbe record, every presumption must be indulged in favor of tbe pleadings and judgment.
Tbe pleadings setting up that appellee furnished labor and material, and that it agreed to put tbe roof on for tbe “price of time and material, not to exceed tbe sum of $325,” sucb allegation is an ambiguous covenant, and subject to reasonable explanation and interpretation by tbe parties, and, without a statement of facts, this court is forced to the conclusion that the evidence raised tbe issues thereto submitted to tbe jury, and found support in the proof.
■ We have carefully considered the assignments and find no error in the trial court's ruling; therefore judgment is affirmed.
Affirmed.