City of Sherman v. Conner

• Decision Date: 10 January 1894
• Citation: 25 S.W. 321
• Parties: CITY OF SHERMAN v. CONNER et al.
• Court: Texas Court of Appeals

25 S.W. 321

CITY OF SHERMAN v. CONNER et al.

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Grayson county; P. B. Muse, Judge.

Action by the city of Sherman against W. C. Conner and T. J. Oliver for damages for injury to plaintiff's waterworks. Defendants answered by general denial and counterclaim in the nature of a cross bill for the value of said works as constructed by defendants, less payments made. Judgment for defendants. Plaintiff appeals. Affirmed.

Brown & Bliss, Head & Dillard, W. W. Wilkins, Hare, Edmundson & Hare, Woods & Brown, and C. L. Vowell, for appellant. Wright & Wright, for appellees.

Conclusions of Fact.

RAINEY, J.

This cause was tried below without a jury. The trial judge filed his conclusions of fact, to which there is no objection urged by appellant. We therefore adopt the same as the conclusions of this court.

Conclusions of Law.

Two assignments of error are urged by appellant, which are as follows: First. "The court erred in rendering judgment for appellees upon the findings of fact as filed in this cause, because, upon the facts as found, it appears that the appellees were not entitled to any judgment whatever against the appellant." Second. "The court erred in not rendering judgment for appellant against appellees, because from the findings of fact it appears that appellant performed its part of the contract, appellees failed to perform their part of it, and that the appellant was damaged by said failure in the sum of $17,695.00, for which it was entitled to judgment." Under these assignments, one proposition, only, is made. It is that, "the appellant having performed its part of the contract, and the appellees having failed to comply with it on their part, and having also abandoned the work, without the fault on the part of appellant, the judgment of the court upon the findings should have been in favor of the appellant for the difference between the value of the system of waterworks as received by it and what it would have been worth if it had been constructed in accordance with the contract, less the amount of the contract price remaining unpaid." This proposition raises the question as to the proper measure of damages in such cases as this. In the case of Carroll v. Welch, 26 Tex. 147, the court, discussing the measure of damages where an employe abandoned the contract after part performance of an entire contract, used the following language: "According to the modern decisions and...