Boettler v. Tendick

• Citation: 11 S.W. 497
• Parties: BOETTLER <I>v.</I> TENDICK.
• Decision Date: 12 April 1889
• Court: Supreme Court of Texas

11 S.W. 497

BOETTLER

v. TENDICK.

Supreme Court of Texas.

April 12, 1889.

Appeal from district court, Bexar county.

Oscar Bergstrom, for appellant. H. E. Barnard and W. W. King, for appellee.

STAYTON, C. J.

Appellant constructed a stone building for appellee under a contract which contained full specifications of the work to be done, and of the character of the material to be used, all of which was to be furnished by the appellant. The plans and specifications were prepared by architects in the employment of appellee, and the contract contains the following agreement: "Sixth. It is furthermore agreed between the contracting parties hereto that the said Wahrenberger & Beckmann are the architects under whose supervision, directions, and control the said materials are to be furnished and the said labor to be performed as mentioned in said plans and specifications and details, and in all cases of difference or dispute as to the character of the labor performed by the said party of the second part, or as to the meaning and intent of said specifications, plans, and details, or as to any word, term, or phrase therein employed, the same is to be referred for decision to said Wahrenberger & Beckmann, their decision to be final, neither party having the right to appeal therefrom." The house was constructed under the supervision of the architects named. The sum to be paid for the entire building was $3,500, which was to be paid as follows: "Eighty per cent. of the amount due for said work from time to time as the condition of the work, in the opinion of the architects, will justify, said amounts to be paid upon the certified estimates of said architects that so much is due upon said work; the remaining twenty per cent. of the difference in the aggregate payments so made as aforesaid, and the said sum of three thousand five hundred dollars, to be paid upon the final completion of the said building, and the acceptance of the same by the party of the first part through his architects." At the end of each week, while the work progressed, the architects gave certificates, on which payments were made as provided by the contract, and on the completion of the house it was received by the architects, who gave a certificate, on which the final payment was made. Some time after the house had been received, the walls cracked, and appellee demanded that appellant should then make all necessary repairs at his own cost, which he refused to do. Appellant having executed a bond with surety for the proper execution of the work, appellee brought suit on that bond, after having caused repairs to be made at his own expense, to recover the sum of $1,426.45 as damages for failure of appellant to construct the house in accordance with the contract, and received a judgment for $326.45. The contract was made a part of the petition. The petition did not allege wherein appellant had failed to do the work in a workman-like manner, as required by the contract, nor did it allege wherein appellant had failed to use such material as was called for in the contract, but did allege that it was discovered, after the building was received, "that said foundation was not built and constructed in a thorough and workman-like manner, nor was the material used therein in accordance with the specifications in said contract;" and "that during the progress of repairs other defects were discovered in the said building, caused by bad workmanship and faulty material used by defendant in the construction of said house; and that the front walls, and other portions thereof, are permanently damaged." The defendant filed a special exception to the petition, which questioned its sufficiency, in that it did not specify wherein the true workmanship and materials used were not in accordance with the contract. This exception was overruled, and this ruling is assigned as error. The averments of the petition are but the conclusions of the pleader, and did not inform the defendant what particular facts would be relied upon to fix liability upon him. While the petition may have been sufficient, even on general demurrer, it was the right of the defendant to be informed wherein the workmanship was faulty, or the material furnished by him not such as his contract required, and when, by specific exception, he pointed out the want of more specific averments, and sought further information as to the many facts on which the plaintiff relied for a recovery, he should not have been forced to go to trial until this information was given. The special exceptions should have been sustained. The petition was further excepted to on the ground that it did not allege that any question of defective workmanship or material was at any time submitted to and decided by the architects in accordance with the terms of the contract, and that exception was overruled. The petition was silent as to whether the architects had superintended the...