Atkinson v. Jackson Bros.

Decision Date01 April 1925
Docket Number(No. 628-4144.)
Citation270 S.W. 848
PartiesATKINSON v. JACKSON BROS. et al.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Supreme Court

Suit by the Leeper-Curd Lumber Company against Jackson Bros. and J. B. Atkinson and wife, in which each defendant filed action against the other. From the judgment as modified and affirmed by the Court of Civil Appeals (259 S. W. 280), J. B. Atkinson brings error. Reversed and remanded in part.

Critz & Woodward, of Coleman, for plaintiff in error.

Snodgrass, Dibrell & Snodgrass, of Coleman, for Leeper-Curd Lumber Co.

Jenkins & Miller, of Brownwood, for defendants in error.

GERMAN, P. J.

This suit originated in the district court of Coleman county, Tex. The Leeper-Curd Lumber Company sued Jackson Bros. and J. B. Atkinson and wife to recover the sum of $1,054.75, with interest, being the balance due for lumber and materials furnished for the construction of a residence upon property belonging to Atkinson and wife. It was alleged that Jackson Bros. had a contract with Atkinson and wife for the building of a residence upon their property in the town of Coleman; that Jackson Bros. contracted with the lumber company for lumber and materials to be used in the construction of said residence, and agreed to pay for same; that it was further agreed between the parties that Atkinson should make payments due Jackson Bros. on their contract direct to Leeper-Curd Lumber Company to the amount due them for lumber; that the lumber and materials were furnished in accordance with the contract and agreement. In addition to personal judgment, the lumber company sought to foreclose a materialman's lien against the premises and residence of Atkinson and wife.

Jackson Bros. answered the suits of Leeper-Curd Lumber Company by general demurrer and general denial. They also brought action against Atkinson and wife (which they denominated a cross-action). They set up the contract between them and Atkinson for the erection of the residence, the original contract price being $7,582.50. They also claimed that by agreement between the parties certain extras had been added amounting to $1,075.75, and for various reasons they had suffered damages in the sum of $1,500. Admitting payments to the amount of $6,422.80, they sued for the balance due, for damages, and for foreclosure of lien upon the house and premises.

Atkinson and wife denied the account sued upon, and claimed that the promise to pay Leeper-Curd Lumber Company for material furnished Jackson Bros. was without consideration. They interposed exceptions on account of misjoinder of causes of action and also on account of misjoinder of parties. They also alleged that none of the parties were entitled to a lien against the premises, because the same constituted their homestead, and the constitutional requirements with reference to fixing lien against the homestead had not been complied with. With reference to the claim of Jackson Bros. for balance due on account, they claimed that the residence had not been built in accordance with plans and specifications, as agreed upon in the written contract; that there were numerous defects and deficiencies in the work; that they had made certain payments for which they had not received credit; and that they had been damaged on account of failure of Jackson Bros. to comply with their contract and build the house in accordance with plans and specifications in the sum of $2,000.

There were numerous other pleadings and certain interveners, but the above statement is sufficient for a consideration of the case here.

The case went to the jury upon special issues. It was not disputed that the original contract price for the house, according to plans, specifications, and addenda, was $7,582.50. The jury found that the extra work and materials amounted to $573; that the value of the house at the time it was completed and in its condition as completed was $7,750; that if the house had been completed according to plans and specifications, with addenda, it would have been worth $8,155.50; that in addition to the sum admitted to have been paid, Atkinson had paid Jackson Bros. the additional sum of $337.86, making a total of $6,760.66 paid. They further found that in the building of the house, Jackson Bros. had not in all respects complied with the contract plans and specifications as agreed upon between the parties, but that there had been a substantial compliance therewith. It was further found that there was an agreement by which Atkinson was to pay direct to Leeper-Curd Lumber Company for lumber and materials furnished Jackson Bros. for use in constructing the house.

The judgment of the trial court may be thus summarized:

(a) Judgment in favor of Leeper-Curd Lumber Company against Jackson Bros. for $1,110.20, with interest at 6 per cent. from November 10, 1922.

(b) That Leeper-Curd Lumber Company take nothing as against Atkinson or his wife.

(c) That Jackson Bros. recover of Atkinson the sum of $821.84, balance on the contract price for the house, plus $573 for extras, making a total of $1,394.84, with interest at 6 per cent. from November 10, 1922. That they recover nothing of Mrs. Atkinson.

(d) That Leeper-Curd Lumber Company and Jackson Bros. be denied a lien against the house and premises.

(e) That Atkinson and wife be denied a recovery on their action against Jackson Bros.

(f) That Atkinson and wife recover costs from Leeper-Curd Lumber Company, so far as its action was concerned.

The Court of Civil Appeals affirmed the trial court in denying Atkinson and wife a recovery against Jackson Bros., and also in denying a recovery against Mrs. Atkinson and a lien in favor of any of the parties. Neither Leeper-Curd Lumber Company nor Jackson Bros. prosecuted writ of error, and so this part of the judgment of the Court of Civil Appeals is not in question. We therefore think that the question of conflict of decisions with reference to materialman's lien is wholly immaterial.

The judgment was by the Court of Civil Appeals reformed in other particulars and affirmed. The judgment as reformed is in substance as follows:

Jackson Bros. were given judgment against J. B. Atkinson for $821.86, balance due on contract, with interest from October 19, 1921, and for $573 extras, with interest from date of judgment, November 10, 1922. The judgment in favor of Leeper-Curd Lumber Company against Jackson Bros. was affirmed, and in addition Leeper-Curd Lumber Company was allowed judgment against J. B. Atkinson, under the theory of equitable assignment, for $1,110.20, with interest from November 10, 1922, with directions that whatever amount is paid by Atkinson on the Leeper-Curd Lumber Company judgment shall be credited on the judgment in favor of Jackson Bros.

Atkinson alone has prosecuted writ of error. His assignments relate to two general propositions. His first contention is that the court erred in not sustaining his exceptions relating to misjoinder of parties and causes of action. His second contention is that the trial court and Court of Civil Appeals adopted a wrong rule for determining his damages, and in arriving at the compensation due Jackson Bros.; it being shown that there was only a substantial performance of the building contract. The second contention presents the only important question in the case.

The jury made a finding that Jackson Bros. did not fully comply with the terms of their contract in the building of the house, but that they did substantially comply therewith. There was evidence in the record that there were numerous defects and deficiencies, many of which were of a minor nature, and which could be remedied at small cost and without impairing the work done or the structural efficiency of the building. There was proof, however, that in the foundation there was defective work and material, causing a substantial defect, and one which could not be remedied without incurring considerable expense and probably requiring the rebuilding of a substantial portion of the house. It appears that neither Atkinson nor Jackson Bros. undertook to furnish complete and detailed proof as to the reasonable cost and expense necessary to supply and correct the defects and make the building comply with specifications. There was no finding of the jury upon this issue, although Atkinson and wife requested the court to submit an issue to the jury for finding thereon, and it was refused.

Under this state of facts, the Court of Civil Appeals applied to Atkinson's claim for damages the rule that if there was substantial performance on the part of the contractor, unless it was shown that the defects were such as could not be remedied, the measure of damage in favor of the owner would be the amount which would reasonably cover the cost of remedying the defects and making the building comply with the contract; that the burden of proof was upon Atkinson to show what would be the cost of remedying such defects, and he having failed to make proof upon this point, Jackson Bros. were entitled to recover the full contract price,...

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