Childress v. Smith

• Decision Date: 26 April 1897
• Parties: CHILDRESS v. SMITH et al.
• Court: Texas Supreme Court

40 S.W. 389

CHILDRESS v. SMITH et al.

Supreme Court of Texas.

April 26, 1897.

Error to court of civil appeals of Fourth supreme judicial district.

Action by H. H. Smith and others against A. W. Childress and others to recover on a building contract, and establish mechanics' liens. Judgment for plaintiffs was affirmed by the court of civil appeals (37 S. W. 1076), and defendant Childress brings error. Reversed.

L. McLaurin and John Bookhout, for plaintiff in error. Dickson & Moroney, for defendants in error.

DENMAN, J.

On the 27th day of April, 1891, Peterman & Griffith, as principal, and Hoyle & Hoyle, as sureties, parties of the first part, entered into a contract with A. W. Childress, party of the second part, whereby it was agreed: (1) That parties of first part should, at their own expense, furnish material and labor, and "erect, put up, and finish, entire and complete," a certain power house, according to certain specifications, same to be done under the superintendence and according to the directions of certain architects, clothed with power to reject any portion of the work or material which, in their opinion, was not in accordance with said specifications, their decision to be final and binding, said architects also having power to make any change in the plan, or any addition to or omission in the work and materials, for said power house, as they might think proper, the difference in the cost occasioned thereby to be fixed by said architects, their action in the matter to be final; (2) that in case parties of first part should fail to finish the work by the 31st of July, 1891, they should pay as liquidated damages $20 per day for each day they might require thereafter to finish same, such damages to be deducted from all moneys due them under the agreement; (3) that party of second part, "in consideration of the faithful performance and completion of the foregoing described work and this agreement by said parties of the first part," should pay to parties of first part "the sum of $12,500, in the manner following: Payments to be made every two weeks, on the architects' certificates for amount of work done," less 15 per cent., which was to be held until final completion of the contract, and all liens and material men had been satisfied, and all the conditions of the contract complied with. H. H. Smith, as assignee of said sureties, brought this suit against A. W. Childress and various other persons, claiming the property upon which said building was erected, and the mechanics' liens thereon, alleging in his petition, among other things not necessary to mention: (1) That, said principals having begun and abandoned the work, their sureties undertook the performance of the contract; (2) that, in pursuance of the terms thereof, and in attempting to carry out the same, they furnished and performed a large amount of material and work, but, before they completed the same, they were compelled to stop work, on account of not being able to get payments due them under the contract from Childress; (3) that, at the time they stopped work, the building could have been completed according to the contract, by the expenditure of labor and material of the value of $1,694.65; (4) that, at the time of such cessation of work, the sureties had procured and prepared, for the purpose of completing said building, a large amount of material, which they were compelled to sell at a sacrifice of $500, by reason of it having been specially prepared for said work; (5) that the sureties had done a large amount of extra work, not included in the contract, for which they claimed compensation (6) that the architects refused to give the sureties estimates for work done under contract, on the ground that it was useless to do so, as Childress was insolvent; (7) that said claims of the sureties have, for valuable consideration, been transferred to plaintiff Smith. Wherefore he sought to recover judgment against Childress upon the contract for the contract price, less said $1,694.65, also for said $500, and, in addition thereto, sought judgment against Childress for the reasonable value of said extra work. Childress answered, among other things not necessary to mention: (1) General denial; (2) that, at the time the sureties ceased work, it would have taken 30 days after 31st day of July, 1891, to have completed the contract, wherefore, under the stipulation therein above quoted, he claimed a deduction of $20 per day for 30 days from the balance that might be found due, if any; (3) that, after the sureties abandoned the work, it was necessary to expend $3,000 to complete same, in accordance with the contract; (4) that notwithstanding estimates were furnished by the architects for all work done in compliance with the contract as it progressed, and notwithstanding such estimates were promptly paid, the sureties, finding that they had an unprofitable contract, willfully, intentionally, and without the fault of defendant, abandoned the same, and carried off the material on hand, and appropriated the same to their...