City of San Antonio v. Reed

• Decision Date: 31 January 1917
• Docket Number: (No. 5747.)
• Citation: 192 S.W. 549
• Parties: CITY OF SAN ANTONIO v. REED et al.
• Court: Texas Court of Appeals

192 S.W. 549

CITY OF SAN ANTONIO v. REED et al.

(No. 5747.)

Court of Civil Appeals of Texas. San Antonio.

January 31, 1917.

Rehearing Denied February 28, 1917.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by James M. Reed against R. G. Scott, the Texas Fidelity & Bonding Company, the Frost National Bank, and the City of San Antonio. The Bonding Company demurred to the petition, and went out of the case without objection on the part of plaintiff; the bank filed a disclaimer and was dismissed, and Scott filed an answer and cross-bill. Judgment for Reed against Scott and the City, and for Scott against the City, and the City appeals. Affirmed.

Geo. R. Gillette, Robt. J. McMillan, and R. G. Harris, all of San Antonio, for appellant. Leo Tarleton, Ryan & Matlock, and Frank H. Wash, all of San Antonio, for appellees.

MOURSUND, J.

James M. Reed sued R. G. Scott, the Texas Fidelity & Bonding Company, the Frost National Bank, and the City of San Antonio, to recover $549 and interest, which he claimed Scott owed him. He alleged that the sum of $417 was due him for work which he had done and teams which he had furnished for work to be done on Buena Vista street in the city of San Antonio; that the sum of $70 had originally been owing by Scott to William Small and the sum of $62 to M. D. Crowell, which claims Reed alleged had been transferred to him by said parties, and of which he alleged he was the owner. For cause of action against the city of San Antonio he charged that the work was done by him and by Crowell and Small upon Buena Vista street, one of the streets in San Antonio; that Scott had a contract with the city of San Antonio for grading and macadamizing Buena Vista street, and that the city of San Antonio had retained out of moneys owing to Scott on that contract over $2,000; that the city had the right to, and should have made provision in its estimates of payments to said Scott for, the payment of all claims for labor and material, and that it was bound to pay, or cause to be paid, all of said claims. Therefore he claimed that he had some character of lien on said money in the city's hands, and asked that he recover judgment against the city for such amount as he recovered against Scott. He brought the Texas Fidelity & Bonding Company into the suit as a surety for Scott, and the Frost National Bank as claiming some interest in the funds in the city's possession. Said Fidelity & Bonding Company urged a demurrer to the petition, which was sustained, and it went out of the case without objection on the part of plaintiff. The Frost Bank filed a disclaimer, and was dismissed from the case, leaving Reed, Scott, and the city of San Antonio the only parties remaining.

Defendant Scott filed a first amended original answer and cross-bill in the case. In this answer he denied that he owed Reed the amount of money claimed as due to him and the amounts claimed to have been owing to Crowell and Small, but said, on the contrary, that the total amount which he owed to the plaintiff, Reed, upon all of Reed's claims, was $410.

Having pleaded this issue of fact between himself and Reed, he then pleaded over against the city of San Antonio by way of cross-bill. In his said cross-bill, the said Scott charged that on or about the 15th day of February, 1913, he and the city of San Antonio entered into a contract for the macadamizing of Buena Vista street between South Pinto street and South Murray street, and that the city bound itself to pay him the sum of $9,800 for the work. A copy of the contract was attached to the cross-bill. He alleged that he went to work under said contract on February 20th, and proceeded in strict accordance with the plans and specifications contained therein, and received from the city the regular payments in accordance with the terms thereof; that on or about May 28, 1913, the city of San Antonio took the work away from him and proceeded to complete the macadamizing of the street with its own forces; that at the time the city took the work away from him he had been complying with his contract, and that, while a number of delays, which he sets out in his cross-bill, had occurred, they were either caused by the city of San Antonio or by a strike upon the part of his men, or by such inclement weather as to make it impossible for him to work.

Defendant Scott charged: That the city of San Antonio had failed to comply with its contract in giving him his monthly estimates in order to enable him to pay his men, and that by reason of that fact he had had a strike upon his work which had operated to delay same. That on or about May 21, 1913, he had received from the mayor of the city of San Antonio a letter which he sets out in his cross-bill, advising that the work was not proceeding satisfactorily, and was being so delayed that it could not be finished within the time provided for by the contract, to wit, 90 working days, and that unless he proceeded with the work with due dispatch the city would exercise its right, retained in clause 8 of the contract, to complete the work at his charge and expense. To this he responded through his lawyer, Mr. Walsh, setting out in detail the delays which he claimed to have sustained, and offered, in event the city disagreed with him as to whether the work was properly proceeding or not, to arbitrate the matter in accordance with paragraph 5 of the contract. That in response to this letter he received one from the Mayor's secretary, advising him that the mayor was considering the matter and would take it up with him again. That on May 28th the city of San Antonio took over the work and proceeded to complete same with its own forces. Said Scott charged that this was done in violation of the provision of the contract providing for arbitration, and, furthermore, that the city was in error in assuming that the work was not proceeding properly, and that he was proceeding with due dispatch, with proper allowances for the delays provided for in the contract.

Defendant Scott further charged that at the time the work was taken away from him it was about three-fourths completed; that according to the estimates of the city engineer he had earned $7,468.66, and that he had been paid only $5,013.60, one-fourth of such estimate having been retained by the city; that he could have completed the work, had he been permitted to do so, for the sum of $2,000, and that the city had therefore damaged him by taking the work from him, to the extent of $2,787.40. He also claimed $58 for tools and materials which he said the city had taken, and prayed that the plaintiff Reed take judgment against him only for $409.50, and that he have judgment over against the city for the amount of his damages as alleged by him.

On November 8, 1915, Reed filed an amended petition, containing averments substantially the same as in his original petition, save that he alleged that on or about the ____ day of July, 1913, the defendant Scott had transferred, assigned, and set over unto him such an interest in the funds arising from the contract with the city as would pay and satisfy his, the said Reed's, claims. This amendment was filed to meet the ruling of the trial court to the effect that there was no privity between said city and Reed, and that Reed had no direct claim upon such a fund as might be in the city's hands.

The defendant Scott filed a third supplemental answer, and admitted that he had made such an assignment to the said Reed.

The city of San Antonio answered plaintiff's petition by general demurrer, special exceptions, pleaded that his cause of action was barred by limitation, inasmuch as in his original suit in July, 1913, he simply charged that the city had funds of Scott's in its hands, and that it should protect plaintiff as a labor and material man, whereas in his amended petition filed in November, 1915, he changed his cause of action against the city and set up an entirely different cause of action, claiming that he had an assignment of funds in the city's hands. The city denied that there was any privity between it and the plaintiff, Reed, and alleged that it was under no obligation to see that the said Reed was paid, even though it had funds of Scott's in its hands, which fact it denied. It denied that it had any dealings or transaction with plaintiff in the matter at all, and represented to the court that any cause of action which plaintiff might have was against the defendant Scott, and not against the city of San Antonio.

Answering the cross-bill of defendant Scott, the city first pleaded in abatement, charging a misjoinder of causes of action, stating that plaintiff's suit was originally a suit against Scott for debt, and, in effect, an attempt at garnishment against the city of San Antonio, whereas the cross-bill of the defendant Scott against the city involved a construction of the contract between him and the city, the merits of the controversy between him and the city with regard to his performance of said contract, and various questions of law and fact with reference to the city's liability to said Scott for profits, etc. The city alleged that these were issues not involved in the original suit, and were improperly joined in this cross-bill.

The city further answered by a general demurrer, special exceptions, a general denial, and specifically denied that it had retained in its possession $2,000 belonging to Scott. It denied that the said Scott was proceeding to carry out his contract with due diligence and dispatch, and, on the contrary, represented to the court that he had wholly failed and refused to carry out said contract, and had made default in the performance thereof; that he had neglected his work and failed to pay his employés, thereby creating a strike among them in such a manner as to render it impossible for him to proceed with the work; that said work was laying in a partially completed condition and rapidly deteriorating; that...