Collier v. Betterton

• Decision Date: 24 January 1895
• Citation: 29 S.W. 467
• Parties: COLLIER v. BETTERTON.
• Court: Texas Supreme Court

29 S.W. 467

COLLIER v. BETTERTON.

Supreme Court of Texas.

January 24, 1895.

Action by C. L. Betterton against John Collier. A judgment for plaintiff was affirmed

by the court of civil appeals (29 S. W. 490), and defendant applies for writ of error. Denied.

Charles L. Edwards, for petitioner.

GAINES, C. J.

We are of the opinion that the application in this case points out no error for which the judgment should be reversed. There is, however, one matter which was passed upon by the court of civil appeals upon which we think it proper to make some remarks. The suit was brought to recover a balance alleged to be due upon a contract for building a house, in which it was stipulated that the building should be completed by the 1st day of October, 1889, and that, in case the contractor should fail to complete it by the day specified, he should pay to Collier, the owner, as liquidated damages, $10 per day for every day that its completion should be delayed. The building was not completed until the 14th day of January, 1890. However, by the permission of the contractor, Collier moved into the building on the 12th day of November, 1889, and continuously occupied two rooms, until the work was finished. The defendant in his answer prayed damages for delay in the completion of the house, as a counterclaim, but, so far as we can see from the application and the conclusions of the court of civil appeals, relied upon the stipulation in the contract as fixing the amount. The trial judge charged the jury, in effect, to allow the defendant damages upon his counterclaim at the rate of $10 per day from October 1, 1889, the time when the building should have been completed under the contract, until November the 12th, in the same year, the time at which he entered and occupied a part of the house. Pursuant to this instruction, the jury found for defendant $420, to be offset against the balance otherwise due upon the contract price, and gave a verdict for the plaintiff for the difference. The court of civil appeals, in passing upon the question of the correctness of the ruling of the trial court in this particular, in their opinion say: "We do not think the action of the trial court upon this issue can be complained of by the appellant. We think the stipulation in the contract for ten dollars per day as liquidated damages for each day of delay in the completion of the building should have been construed and treated as a penalty. 3 Sedg. Dam. p. 206; Durst v. Swift, 11 Tex. 281; Moore v. Anderson, 30 Tex. 225. Under such a construction, there was not proof of damages to the extent of the recovery, and the appellant suffered no injury from the charge as given." 29 S. W. 490. It is to be...