Abel v. Maxwell Hardware Co.

• Court: Texas Court of Appeals
• Writing for the Court: Dunklin
• Citation: Abel v. Maxwell Hardware Co., 28 S.W.2d 312 (Tex. App. 1930)
• Decision Date: 08 February 1930
• Docket Number: No. 12262.,12262.
• Parties: ABEL v. MAXWELL HARDWARE CO.

28 S.W.2d 312

ABEL v. MAXWELL HARDWARE CO.

No. 12262.

Court of Civil Appeals of Texas. Fort Worth.

February 8, 1930.

Rehearing Denied March 22, 1930.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Suit by the Maxwell Hardware Company against E. G. Abel, wherein defendant filed cross-action. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bunnenberg & Nelson, of Wichita Falls, for appellant.

Bullington, Boone, Humphrey & King, of Wichita Falls, for appellee.

DUNKLIN, J.

The Maxwell Hardware Company sued E. G. Abel for debt claimed to be due for certain plumbing material and work furnished and done in a residence owned by the defendant and for foreclosure of a mechanic's and materialman's lien upon the house and lot.

In addition to a general denial, the defendant, Abel, set up a cross-action against the plaintiff for damages in the sum of $200, loss of rents, and $1,000, which he alleged resulted to the house from plaintiff's negligence while doing the plumbing work in digging certain ditches which were negligently left open by the plaintiff, and in which ditches rain water accumulated and resulted in undermining the house by reason of causing its foundations to give way. The defendant further alleged that the contract made by him with the plaintiff was made directly with Jack Barnes as agent for the plaintiff.

By supplemental petition plaintiff presented a general denial of all the allegations set up in the cross-action. Plaintiff further alleged that it sold the material necessary for the plumbing work to one Jack Barnes, and that it had nothing whatever to do with any contract between the defendant and Barnes for doing the plumbing work, but that, after the job was roughed in by Barnes, he refused to complete it, and that plaintiff, at defendant's special instance and request, had the fixtures set in, and for which the defendant agreed to pay it the sum of $222.50. It was further alleged that if the ditches were dug as the defendant alleged, then that work was done by Barnes alone on his own responsibility, and not as the agent of the plaintiff, and therefore the plaintiff was in no manner liable for any damages resulting therefrom.

Upon the trial of the case before a jury a judgment was rendered allowing plaintiff a recovery for the debt sued for and fixing and foreclosing the mechanic's and materialman's lien claimed by the plaintiff on the premises; but denying the defendant any relief upon his cross-action.

The defendant, Abel, has prosecuted this appeal, and the errors assigned relate solely to the fixing and foreclosing of the mechanic's and materialman's lien; no complaint being made of the judgment in plaintiff's favor for the debt upon which the foreclosure was based.

The jury found that, at the time the contract was entered into between the defendant and Jack Barnes for doing the plumbing work, he (Barnes) was not acting for the plaintiff, Maxwell Hardware Company; that leaving the ditches open for the length of time they were left open was not negligence; that neither the plaintiff nor any of its employees cut the foundation under the house; that the roughing in work was not done in a good and workmanlike manner, but that the installing of the plumbing fixtures was properly done; that the plumbing material and fixtures furnished by the plaintiff were of the character and quality contracted for; that defendant's house was not caused to be vacant by reason of any alleged negligence on the part of the plaintiff.

The following were additional special issues submitted to the jury with their answers thereto:

(a) "Was the cracking in the walls and in the foundation caused by an unequal distribution of the weight of the house on the foundation? Answer: Yes."

(b) "Was the foundation under this house properly constructed so as to prevent the corners of the house from settling? Answer: No."

Error has been assigned to the submission of the two special issues quoted above on the ground that they were not warranted by the pleadings. It is appellant's contention that, in the absence of some special plea by the plaintiff presenting the facts embodied in those issues as a defense to the cross-action, the court was without authority to present them as defensive issues. As noted above, the plaintiff did file a general denial of all the allegations of fact set up in the cross-action. That plea put in issue the truth of each and all of those allegations, the chief one of which was that, by reason of the alleged defective work, the foundations of the house were undermined with water accumulated from the ditches which were dug in connection with the work, and thereby the walls of the house were caused to settle and crack. Manifestly, proof that the cracking of the walls of the house was caused by the unequal distribution of its weight on its foundation and that the foundation was not properly constructed so as to prevent the corners from settling would rebut and tend to disprove the defendant's allegation that such damage was caused by the digging of the ditches. Furthermore, the findings of the jury on those issues were amply supported by testimony offered by the plaintiff, and appellant has presented no assignment of error to the admission of such testimony, nor have we found in the record any objection urged thereto. Moreover, it is clear that no valid objection could have been made to the introduction of such proof. A long list of authorities might be cited holding that under a general denial a party can prove any fact the effect of which would be to disprove or deny allegations in the pleadings of the adverse party, such as Altgelt v. Emilienburg, 64 Tex. 150; Gulf, C. & S. F. Railway Co. v. Booton (Tex. Sup.) 15 S. W. 909; Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058; S. A. & A. P. Ry. Co. v. Gurley, 37 Tex. Civ. App. 283, 83 S. W. 842; Hardin v. St. L. S. W. Ry. Co. (Tex. Civ. App.) 88 S. W. 440; Fielder v. St. L., B. & M. Ry. Co. (Tex. Civ. App.) 112 S. W. 669; Amarillo Oil Co. v. Ranch Creek Oil & Gas Co. (Tex. Civ. App.) 271 S. W. 145; G., H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534.

It is also a well-settled rule that a party is entitled to have submitted to the jury in an affirmative form any group of facts sufficient in law to establish a cause of action or a ground of defense, and based on proper pleadings; and that refusal of a request for such submission is reversible error. Our Supreme Court so held in St. Louis S. W. Ry. Co. v. Hall, 98 Tex. 480, 85 S. W. 786, and in that case the judgment of the trial court was reversed for failure to give a requested instruction embodying facts brought out in the evidence introduced by the defendant in rebuttal of plaintiff's allegations charging it with negligence. That decision followed a long line of others to the same effect, in all of which the cases were submitted to the jury by a general charge and not upon special issues. And the same rule applies when a case is submitted on special issues, since it is expressly provided by Revised Civil Statutes, article 2190: "When the court submits a case upon special issues, he shall submit all the...