Brown Iron Co. v. Norwood

• Decision Date: 02 June 1902
• Citation: 69 S.W. 253
• Court: Texas Court of Appeals
• Parties: BROWN IRON CO. et al. v. NORWOOD.

69 S.W. 253

BROWN IRON CO. et al. v. NORWOOD.

Court of Civil Appeals of Texas.

June 2, 1902.

Appeal from district court, Grimes county; J. M. Smither, Judge.

Action by Ewing Norwood against Brown Iron Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Stanley Thompson, for appellants. Neal & Boone and John M. King, for appellee.

PLEASANTS, J.

This is a companion case to that of Iron Co. v. Templeman (decided by this court on May 29th) 69 S. W. 249, this suit being against the same defendants, and having been brought upon a building contract and bond of indemnity similar in all respects to those upon which the Templeman suit was brought. The plaintiff in this suit sought to recover the sum of $244.79, furnished by him to the defendant Cloney to enable him to finish the building in accordance with the terms of his contract, and the further sum of $475 damages for delay in the completion of said building. The answer of the defendants, in addition to the general denial, set up the following defenses: "That the amount claimed for damages for delay was a penalty, and not liquidated damages; that the delay in completing the building was not the fault of Cloney, but was the fault of plaintiff; that by the terms of the agreement the damages for delay, if any, were to be deducted by the plaintiff from the contract price; that plaintiff had paid Cloney the full contract price, and more, without deducting said damages, whereby plaintiff waived the damages for delay; that by the terms of the building contract the said Cloney was to build said building and furnish and pay for all labor therefor for the sum of $2,200, and if plaintiff overpaid him the sum of $244.79 in cash, or for labor and material that he furnished to Cloney, it was a voluntary payment on the part of plaintiff, and a waiver of the terms of the agreement; that the terms of the original contract were materially changed and altered without the knowledge of defendants who now appeal, viz., the sureties on Cloney's bonds, and a new and different contract was substituted for the original contract, whereby appellants were relieved from any liability on said bond; that Cloney built and completed said building according to contract, and turned the same over to plaintiff, and the plaintiff accepted the same." The trial in the court below was by the court without the intervention of a jury and resulted in a judgment in favor of the plaintiff against Cloney for the sum of $719.79, and against the sureties upon said bond, the appellants herein, in the sum of $650, and interest from March 23, 1899. By the contract introduced in evidence the defendant Cloney agreed for a consideration of $2,200 to construct a two-story frame building for the appellee, and to furnish all the labor and material necessary in the construction of said building at his own cost and expense, said building to be completed on or before October 15, 1898. It was further provided in said contract that, in case Cloney failed to complete said building by the time specified, he would pay to appellee, as liquidated damages, the sum of $5 per day for each and every day required to complete said building after said 15th day of October; said damages to be deducted by the appellee from all moneys due Cloney under said contract. It was further stipulated in said contract that the agreed price for the construction of said building should be paid in the following manner, viz.: "The contractor to receive every two weeks 75% of the value of the work placed in the building until final acceptance of the building, when he shall receive the balance due." The bond introduced in evidence is as follows: "State of Texas, County of Harris. Know all men by these presents that we, E. W. Cloney, Brown Iron Company, S. Brown, and J. M. Ludtke, jointly and severally, acknowledge ourselves firmly bound to pay Mr Ewing Norwood, of Grimes county, Texas, the sum of six hundred and fifty ($650) dollars, for the payment of which well and truly to be made unto the said Ewing Norwood, at his office in the city of Navasota, Grimes county, Texas, we bind ourselves, our heirs, executors, and administrators. The condition of this obligation is such that whereas, the said E. W. Cloney, by contract in writing of even date herewith, has agreed to furnish at his own cost, charge, and expense all material, labor, and tools required for the construction and completion of the building and to erect such building for said Mr. Ewing Norwood in the city of Navasota, Texas, on lot No. ____, according to the drawings and specifications prepared for the same by ...