Clifford v. Leroux

• Decision Date: 23 September 1896
• Citation: 37 S.W. 172
• Parties: CLIFFORD et al. v. LEROUX.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

37 S.W. 172

CLIFFORD et al. v. LEROUX.¹

Court of Civil Appeals of Texas.

September 23, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by C. N. Leroux against G. G. Clifford and another. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Upson & Bergstrom, for appellants. William Aubrey and C. K. Breneman, for appellee.

NEILL, J.

This suit was instituted by appellee against appellants, G. G. Clifford and Kate Elliot, on three promissory notes made by them to the appellee. The first note was executed on the 8th of March, 1894, for $559.49. The other two were executed on the 26th of May, 1894, for $458.20 each. The notes were payable four, five, and six months after their respective dates, with interest therefrom at the rate of 10 per cent. per annum, and 10 per cent. attorney's fees if collected by process of law. The appellants answered that they were the owners of a certain building in the city of San Antonio, designed to be rented for office purposes; that it was constructed with four stories and a basement, and contained 23 rooms and a balcony; that the reasonable rental value of the rooms, on an average, was $16 per month each; that, for the purpose of utilizing the upper stories, plaintiff and defendants, on the 2d day of January, 1894, entered into a contract in writing whereby plaintiff agreed and bound himself to furnish the material and labor, and place in said building an elevator, which was to be constructed and completed in a workmanlike manner, within a reasonable time, and to be of sufficient capacity, with a pressure of 60 pounds hydraulic, to operate it at a speed of 200 feet per minute when raising an average weight, which meant 750 pounds, in consideration whereof defendants agreed and bound themselves to pay plaintiff the sum of $1,307; that plaintiff further agreed and bound himself, for a reasonable compensation, to put in all necessary pipe and all connections from defendants' building to a certain tank owned by George Dullnig, and to so construct the same in connection with the elevator as to furnish a pressure of 60 pounds hydraulic with which to operate the elevator, and that, when so constructed, the same should operate the elevator in accordance with the guaranties of said contract; and further bound and obligated himself in such contract to keep said elevator, piping, and all attachments in repair and in good condition to operate in accordance with the terms of the contract for one year thereafter, which contract was verbal; that plaintiff undertook to place in said building such elevator in accordance with the terms of said contract, and also to furnish and place all the pipes, attachments, and connections with said tank, but, when completed, the elevator could not be made to carry an average weight at about 200 feet per minute, and said piping and attachments were defective, leaky, and could not be made to keep up the pressure of 60 pounds hydraulic with which to operate said elevator; that it was provided by said contract that the elevator should be constructed under the direction and to the satisfaction of J. R. Gordon, architect, in charge of the construction of said building, but that it had never been accepted by Gordon, because it was not constructed in accordance with said contract and plans and specifications therefor, and that the elevator and attachments had never been accepted by defendants, nor had they ever waived such acceptance or agreed to accept the same; that defendants had paid on account of material furnished and labor done in the construction of the pipes, connections, and attachments therefor, including repairs, the sum of $804; that the notes sued on were executed and delivered to plaintiff in payment of the contract price of said elevator, but that they were without consideration, because of plaintiff's failure to comply with his contract; that, by reason of his failure to so construct the elevator for operation, defendants were greatly damaged by their inability to rent the rooms for offices in the upper stories of said building; and that their damages, as specifically set out, amount to...