Beck v. Lawler

• Decision Date: 15 December 1967
• Docket Number: 16877,Nos. 16865,s. 16865
• Citation: 422 S.W.2d 816
• Court: Texas Court of Appeals
• Parties: Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellant, v. H. Roger LAWLER, d/b/a Lawler Properties, Appellee. H. Roger LAWLER, d/b/a Lawler Properties, Appellant, v. Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellee. . Fort Worth

Page 816

422 S.W.2d 816

Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellant, v. H. Roger LAWLER, d/b/a Lawler Properties, Appellee.

H. Roger LAWLER, d/b/a Lawler Properties, Appellant, v. Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellee.

Nos. 16865, 16877.

Court of Civil Appeals of Texas Fort Worth.

Dec. 15, 1967.

Rehearing Denied Jan. 12, 1968.

McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and George F. Christie, Fort Worth, for appellant H. Roger Lawler, d/b/a Lawler Properties.

Bill Atkins, Arlington, for appellant Jerry Beck, d/b/a Arlington Paint and Dry Wall.

OPINION

LANGDON, Justice.

Appellee Jerry Beck, a painting contractor, plaintiff below, sued appellant-defendant H. Roger Lawler (the parties hereinafter will be referred to as they appeared in the Trial Court) for $5,107.20, the balance allegedly due for painting and wallpapering the defendant's residence and an apartment project, for foreclosure of a statutory mechanic's lien on the apartment project, prejudgment interest from June 10, 1964, and attorneys' fees. Defendant contended that plaintiff had not properly and completely fulfilled his contracts with defendant, requiring defendant to hire another painting contractor to complete said contract on the apartments and house at a cost to defendant of more than plaintiff was suing for. Defendant further contended that plaintiff was not entitled to prejudgment interest nor attorneys' fees because of the nature of the suit. After a jury trial, the Court entered judgment on the verdict for plaintiff in the amount of $5,107.20, and foreclosure of the mechanic's and materialmen's lien, but denied prejudgment interest and denied attorneys' fees. Plaintiff appealed from that portion of the judgment disallowing interest and attorneys' fees and defendant has appealed from the judgment for plaintiff for $5,107.20, which appeals are now docketed in this Court as Causes Nos. 16865 and 16887, respectively.

In early 1964, plaintiff and defendant entered into two separate agreements. Under the first agreement, plaintiff agreed to paint and wallpaper certain portions of defendant's residence in Dallas, Texas, and, under the other agreement, plaintiff agreed to paint and wallpaper defendant's apartment project in Arlington, Texas. There is no appeal from the portion of the judgment relating to the work on the residence.

Defendant contended that plaintiff had not completed his contract at the apartments substantially because there were different shades of paint on the outside of the apartments and some places were inadequately covered with paint, which required defendant to have the entire outside of the apartments repainted, at a cost to defendant of $3,052.05.

The case was submitted to the jury on a charge containing eight special issues. In answer to special issues Nos. 5 and 6, respectively, the jury found that the painting job done by the plaintiff on the apartment project was not performed in complete compliance but in substantial compliance with the terms of the contract in question.

Defendant in this appeal complains of the jury's answers to special issues Nos. 7 (conditioned on the 'No' answer to issue No. 5) and 8, wherein the jury found respectively that no money would be required to rework the painting job done by plaintiff to complete compliance with the contract, and that defendant accepted plaintiff's apartment work. No complaint is made on this appeal as to the form or substance of the issues submitted.

Defendant complains that the jury's answers to each issue were not supported by the evidence, were supported by insufficient evidence and were contrary to the great weight and preponderance of the evidence.

There was evidence to the effect that the work on the apartment was approved and accepted on behalf of the defendant by one authorized to do so.

'The doctrine of substantial performance necessarily includes compensation for all defects which are not so slight and insignificant as to be safely overlooked on the principle of de minimis non curet lex.' This language is part of a quote from 6 R.C .L., p. 969, found in the case of Atkinson v. Jackson Bros., 270 S.W . 848, 38 A.L.R. 1377 (Tex.Com.App., 1925).

The jury in the case at bar determined that the defects which constituted the difference between their findings of incomplete and substantial compliance were so slight as to require no additional costs for complete compliance.

The jury under the record in this case was not required to find that the sum of $3,052.05 expended by the defendants in changing the color of paint after approval and acceptance of the contract job on the apartment project represented the amount of money to remedy defects and omissions resulting from failure of the plaintiff to perform in complete compliance with the terms of the contract. The jury rejected this proposition and resolved the question against the defendants.

On the 'no evidence' point of error we have viewed the evidence in its most favorable light in support of the findings of the jury upon which the judgment of the court is based, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the findings. In the application of this test we have determined that all of the findings of the jury, upon which the court based its judgment, are supported by ample evidence.

Further, we have concluded from our study and examination of the entire record that the findings of the jury upon which the court based its judgment is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or unjust.

Jurors are the exclusive judges of the controverted issues of fact raised by the evidence, of the weight to be given the evidence, and the inferences to be drawn therefrom. They are the exclusive judges of the credibility of the witnesses. 'The law does not attemt to tell jurors what amount or kind of evidence ought to produce a belief in their minds. They may believe a witness although he has been contradicted. They may believe the testimony of one witness and reject the testimony of other witnesses. They may accept part of the testimony of one witness and disregard the remainder.' McCormick & Ray, Texas Law of Evidence, Vol. 1, § 3; Austin Fire Ins . Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923).

'The mere fact that a verdict is against the preponderance of the evidence will not authorize a reviewing court to set it aside, if there is some evidence to support it, or evidence that would support a verdict either way. The court of civil appeals will set aside the verdict and findings of a jury only in cases where they are so against such a preponderance of the evidence as to be manifestly unjust or clearly wrong, or where they show clearly that the finding or verdict was the result of passion, prejudice, or improper motive, or in such obvious conflict with the justice of the case as to render it unconscionable.' 4 Tex.Jur.2d p. 395, § 838, and authorities cited therein.

'A jury finding on facts will not be set aside because it does not appear to be clearly right; it must appear to be clearly wrong before the appellate court will disturb it.

'The fact that the appellate court would not have found as the jury did is not the test to be applied on appeal. The true test is that made by the jury, on firsthand evidence, adduced before them from living witnesses whose credibility and the weight to be given their testimony were determinable by the jury. Where the jury's findings are in accord with the testimony of different disinterested witnesses, the fact that there is other testimony to the contrary does not authorize the appellate court to overturn the verdict. * * *' 4 Tex.Jur.2d 390, § 837, and authorities cited therein.

In the application of the rules of law and the authorities above referred to, we overrule all points of error raised by the defendant relating to the quantity or quality of the evidence supporting the findings of the jury upon which the Court based its...