Bradshaw v. Wolfe City

• Decision Date: 17 December 1927
• Docket Number: (No. 10081.)
• Citation: 3 S.W.2d 527
• Parties: BRADSHAW et al. v. WOLFE CITY et al.
• Court: Texas Court of Appeals

3 S.W.2d 527

BRADSHAW et al. v. WOLFE CITY et al.

(No. 10081.)

Court of Civil Appeals of Texas. Dallas.

December 17, 1927.

Rehearing Denied March 3, 1928.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by the City of Wolfe City and others against T. A. Bradshaw and another, in which the First State Bank of Wolfe City intervened. From the judgment, defendant named and another appeal. Affirmed.

Lawther, Pope, Leachman & Lawther, of Dallas, and Jones & Jones, of Mineola, for appellants.

L. A. Clark and Bowman & Bowman, all of Greenville, for appellees.

LOONEY, J.

T. A. Bradshaw contracted to build a waterworks dam for the city of Wolfe City, according to plans and specifications prepared by the city's engineer, and was to furnish a contractor's bond in the sum of $5,000, conditioned for the faithful performance of the contract. This bond was furnished with the Employers' Casualty Company as surety. Bradshaw failed to complete the work undertaken, and the city, as it was authorized to do, took charge and proceeded with the work, expending thereon $2,152.60 towards its completion, but left the same uncompleted for the reason that it exhausted all available funds that could have been used for that purpose.

The city brought this suit against Bradshaw and the casualty company to recover the amount expended, plus the additional sum necessary to complete the dam according to contract. The First State Bank of Wolfe City intervened, seeking to recover from Bradshaw and the surety company $3,800, the amount paid out by it in settlement of claims of laborers and materialmen. A. A. Humphrey also intervened on a claim for work performed by him for Bradshaw on the job. There were other interventions, but, as they are not involved here, it is not necessary that they be noticed. The case was tried to a jury, and resulted in the judgment from which Bradshaw and the casualty company have appealed.

1. The defendants Bradshaw and the casualty company filed pleas of privilege that were contested, and on hearing were overruled by the court, on which error is assigned.

The record discloses that these pleas of privilege were overruled on March 30, 1925, in the Eighth judicial district; no appeal was prosecuted therefrom; the case was continued from term to term, and transferred from one court to another until on January 29, 1927, trial was had in the Sixty-Second judicial district. By failing to appeal from the order of court overruling the pleas of privilege, appellants waived their right to have the matter reviewed. Smith Brothers Grain Co. v. Windsor & Stanley (Tex. Com. App.) 255 S. W. 158; Wright v. Cooke (Tex. Civ. App.) 287 S. W. 526; Farmersville, etc., Co. v. Moore (Tex. Civ. App.) 292 S. W. 555. We therefore overrule this assignment.

2. The casualty company contends that the court erred in not sustaining its exceptions to the amended plea of intervention filed by the bank, because the plea failed to sufficiently allege that laborers themselves had assignable causes of action that were assigned to intervener before being paid and extinguished.

The plea of intervention alleged the number of hours each employee labored, the wages each was to receive, and when the work was done. The same allegations were made with reference to all claims declared on, except that of C. C. Crable, blacksmith, for labor and material, which was itemized with detailed particularity, and the claim of A. A. Humphrey for $1,051.50, with reference to which the plea alleged that Humphrey, with a large number of hands, teams, fresnos, scrapers, wagons, plows, and other machines, worked on the job and earned the said sum of money; that a daily record was kept by those in charge of the work for Bradshaw showing the amount of work done, the names of those who performed same, and the teams and machinery used; that said record was destroyed by fire and could not be produced, but that Bradshaw and the casualty company were in possession of all the facts; and that all matters otherwise connected therewith, not alleged by intervener, were unknown to it and could not be ascertained.

It is made to appear that appellants were in fact in possession of this information from an admission in their brief at page 110, where it is disclosed that, while arguing the special exception under consideration, the trial court was informed by appellant what the evidence would show. The plea, in our opinion, was sufficient; hence the court did not err in overruling the same, besides it appears that appellant could not have been surprised, under the circumstances.

3. The casualty company contends that a new cause of action was set up by the bank in its amended plea of intervention filed more than two years after it furnished the money to pay off laborers and materialmen; therefore the same was barred by the one-year statute of limitation prescribed in article 5162, Revised Statutes of 1925.

The record discloses that Bradshaw abandoned the work in September, 1924; This suit was filed February 3, 1925; the bank filed its original plea of intervention on March 10, 1925. In its original plea, the bank sought to recover on all claims later set up in its amended plea filed January 10, 1927, except certain claims that aggregate the sum of $214.95, set up for the first time in the amended plea. If, however, we deduct this amount, there is still left claims aggregating $3,813.16, an amount in excess of the sum found in its favor, by $13.16. The cause of action, based on claims that aggregate the sum of $3,813.16, as alleged by intervener in its original and amended pleadings, is the same in each pleading; the allegations of the latter being more specific and detailed. The filing of the original plea of intervention interrupted the operation of the statute of limitation. This contention is overruled. G. C. & S. F. Ry. v. Baker (Tex. Civ. App.) 218 S. W. 7, 10; Mann v. Mitchell (Tex. Civ. App.) 241 S. W. 715, 717.

4. The surety company insists that it was released from liability on the bond for the reason that material changes and alterations were made in the contract by the city's engineer — after the bond was executed — without its knowledge or consent, and not in writing as required by an express provision of the contract.

Before work was begun by Bradshaw on the dam, the city's engineer instructed him orally to change the grade on the upstream side to a slope of 2½ to 1 instead of 2 to 1, meaning that the upper slope should be 2½ feet of base to each foot of altitude, instead of 2 feet of base to 1 foot of altitude, and also widened the crown of the dam from 6 to 8 feet, which necessitated the addition of 15 feet in width to the base on the upstream side. These changes added at least $1,000 additional cost to the city, and, although consented to by Bradshaw, was without the knowledge of the surety company.

The pertinent provisions of the contract are as follows:

"Changes. The city shall have the right to make any changes that may be hereafter determined upon, in the nature of dimensions of the work, either before or after its commencement, and such changes shall in no way affect or void the obligation of this contract. If such changes make any change in the cost of the work, an equitable adjustment shall be made by the engineer to cover the same.

"Extra Work. No bill or claim for extra work shall be allowed or paid unless the doing of such extra work shall have been authorized in writing by the engineer. The price for such work shall be determined by the engineer, who will provide that the price shall be determined by the actual cost, to which shall be added 15% to cover general expenses and superintendence, profits, contingencies, use of tools, contractor's risk and liability. If the contractor shall perform any work which is not provided for in this contract, or which was not authorized in writing by the engineer, said contractor shall receive no compensation for such work or material so furnished, and does hereby release and discharge the city from any liability therefor. If contractor shall proceed with such extra work after receiving the written authority therefor, as hereinbefore provided, then such work or material, stated in the written authority of the engineer, shall be covered, governed and controlled by all the terms and provisions of this contract, subject to such prices as may be agreed upon or fixed by the engineer. If the contractor shall decline or fail to perform such work as authorized by the engineer in writing, as aforesaid, the city may then arrange for the performance of the work in any manner it may see fit, the same as if this contract had not been executed, and the contractor shall not interfere with such performance of the work."

The position of the surety company is that these changes in the contract, made before the work was begun, constituted in effect the making of a new contract without its knowledge or consent, and the changes not having been authorized in writing by the engineer, as provided in the contract, released it from the obligation of surety on the bond.

It may be conceded that, if appellant's construction of the contract is correct, that is, if the changes in the dimensions of the dam should have been authorized in writing by the engineer, the contract was violated, a material alteration took place without its knowledge or consent, and that it was thereby discharged. Lonergan v. San Antonio, etc., Co., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803. We cannot, however, accept this view. Changes in dimensions of the work, either before or after commencement, were not required to be authorized in writing. No agreement or collateral contract with any one with reference thereto was required as a condition precedent. It was not optional with the contractor whether he would or would not make the changes; it was his plain duty to do so, by the terms of the...