Constitution Indemnity Co. v. Armbrust

• Decision Date: 06 February 1930
• Docket Number: No. 8337.,8337.
• Citation: 25 S.W.2d 176
• Parties: CONSTITUTION INDEMNITY CO. OF PHILADELPHIA v. ARMBRUST et al.
• Court: Texas Court of Appeals

25 S.W.2d 176

CONSTITUTION INDEMNITY CO. OF PHILADELPHIA v. ARMBRUST et al.

No. 8337.

Court of Civil Appeals of Texas. San Antonio.

February 6, 1930.

Rehearing Denied March 5, 1930.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by C. A. Armbrust and others against the Constitution Indemnity Company of Philadelphia and another. From the judgment named, defendant appeals.

Affirmed.

Church & Graves, Douglas N. Lawley, and W. S. Gideon, all of San Antonio, for appellant.

Terrell, Davis, McMillan & Hall and Thomson, Dilworth & Marshall, all of San Antonio, for appellees.

COBBS, J.

This suit was instituted by C. A. Armbrust and wife, Jeanette C. Armbrust, two of the appellees, against E. S. Kaler, doing business under the name of E. S. Kaler & Co., and appellant, Constitution Indemnity Company of Philadelphia.

The suit was for damages in the sum of $500, for failure on the part of Kaler to comply with the plans and specifications in the construction of certain improvements, consisting of a house and outhouses for appellees in the city of San Antonio, and for the further sum of $75 per month, for a period of ten months, being the alleged rental value of the premises for said period, during which the same were uncompleted according to the contract, and appellees were deprived of the use thereof. And appellees Mr. and Mrs. Armbrust claimed that the Karren-Tobias Lumber Company had been damaged in the sum of $3,721.60, being the alleged cost of completing the house and improvements.

Attached to plaintiffs' pleadings were voluminous invoices of items by number and amount, and also a copy of the contract made on September 15, 1927.

The provision in the contract concerning the payment of the contract price, which was typewritten into a printed contract form, was as follows: "Payable in three notes of $2500.00 each as first lien, and one note of $3000.00 as a second lien, evidenced by mechanics lien contract of record dated September 14th, 1927." And the printed provision in the bond stated: "In any event, whether provided in the contract or not, ten percent of the contract price must be retained until after the completion of the contract." The printed contract also has typewritten the word "three" in that portion of the contract wherein it provides that final payment to the contractor shall be made within "three" days after the completion and acceptance of the work included in the contract, except ten per cent. which is to be held for thirty days. These were offered in evidence by appellees to show conflict or ambiguity.

The pleadings allege a contract between Mr. and Mrs. Armbrust and C. E. Freeman for the completion of the improvements abandoned by E. S. Kaler & Co., in accordance with the plans and specifications; the agreed compensation for the undertaking being an amount equivalent to the actual cost of the labor and materials necessary therefor plus ten per cent. of said amount.

And the pleadings set out the contract made by and between C. A. Armbrust and wife and the appellee Karren-Tobias Lumber Company, which contract contains the following: "It is the intention of the parties hereto that the said Karren-Tobias Lumber Company shall advance and pay to the said C. E. Freeman the cost of completing said improvements and that they are to be reimbursed for such cost by the said Jeanette Corrine Armbrust and C. A. Armbrust only in the event of a recovery against the said E. S. Kaler & Company or its surety, and then only to the extent of such recovery, and the said Jeanette Corrine Armbrust and C. A. Armbrust shall in no event be liable for the repayment to the said Karren-Tobias Lumber Company of the money advanced and paid by it to C. E. Freeman in excess of any amount recovered by the said Armbrusts against the E. S. Kaler & Company or the surety on its bond."

The defendant E. S. Kaler & Co. filed responsive pleadings.

The evidence of L. S. Karren, president of the Karren-Tobias Lumber Company, showed that ten per cent. of the contract price was not retained and that he, for his company, had advanced the sum of $10,329.09 out of the agreed contract price of $10,500 to Kaler before Kaler abandoned the contract. Also, it was shown that the notes set out in the contract were made payable to the Karren-Tobias Lumber Company for security for advances made to Kaler, and that a commitment was obtained before the work was started, for the three notes of $2,500 each, which commitment was procured by appellees Armbrusts, of which fact appellant claims it had no actual notice. It was further shown that the $3,000 note was indorsed by the Karren-Tobias Lumber Company, and they received the sum of $3,000 therefor.

It was shown that all the money provided for in the contract price, except the sum of $500 architects' fee, was paid out without any certificates of any kind from the architect.

The court, at the conclusion of the evidence, submitted the two following issues to the jury:

"1. Was it the intention of the parties to the contract and bond, that ten percent of the contract price should be retained, by the owners, until the improvements were completed and accepted in accordance with the plans and specifications?

"Answer `Yes' or `No.'

"We the jury, answer No.

"If you answer the foregoing question `no' then you need not answer the following question, but if you answer the same `yes' then answer the following question:

"2. Did Jeanette C. and C. A. Armbrust retain ten percent of the contract price until after the completion and acceptance of the improvements?

"Answer `Yes' or `No.'

"We the jury, answer ____."

Since issue No. 1 was answered in the negative, issue No. 2 needed no answer by the jury.

Whereupon the court rendered a verdict against appellant in favor of appellees C. A. Armbrust and wife for the sum of $315 and in favor of the appellee Karren-Tobias Lumber Company for the sum of $4,211.85, with interest from February 1, 1927.

We do not think the court erred in submitting the issue to the jury as to what was the intention of the parties in respect to the provision as to retaining ten per cent. of the contract price until the improvements were completed. It will be observed that the contract between the parties was prepared on a printed form, and that in the blank, as to the manner of payment, was typewritten the following provisions: "Payable in three notes of $2500 each, as first lien, and one for $3,000.00, as a second lien, evidenced by mechanic's lien contract of record, dated September 14, 1927." These provisions conflict with those recited in the printed contract, as follows: "The final payment shall be made within three (3) days after the completion and acceptance of the work included in this contract except ten percent which will be held for thirty (30) days unless satisfactory evidence is furnished that all claims of every nature have been paid." And the bond provides: "The obligee shall retain that portion of the contract price which such contract specifies the obligee shall or may retain of the value of all work performed or materials furnished in the prosecution of the contract until the complete performance by the principal of all the terms, covenants and conditions of said contract on the principal's part to be performed."

Really it was not necessary for the court to submit the issue, because under the well-known established principles of law the typewritten provisions of the contract superseded the inconsistent printed provisions, and the intention of the parties was established by such typewritten provisions; however, there was no injury to appellant in the submission of the issue. And there is no injury shown. Jones v. Roche (Tex. Civ. App.) 244 S. W. 227; Magnolia Petroleum Co. v. Connellee (Tex. Com. App.) 11 S.W.(2d) 158.

The failure to retain ten per cent. of the contract price is defensive, and it was not necessary for appellees to allege an affirmative compliance with each and every provision of the contract. St. Paul Fire & Marine Insurance Co. v. Laster (Tex. Civ. App.) 187 S. W. 969; East Texas Fire Insurance Co. v. Dyches, 56 Tex. 566.

The pleadings, however, showed that the ten per cent. was in fact retained, and that payment was made through notes as provided by the contract.

In regard to appellant's second proposition, we do not think the court erred in overruling special exceptions to appellees' first amended original petition and in not rendering verdict for appellant. The issue attempted to be set up was purely defensive matter.

The Karren-Tobias Lumber Company advanced $10,329.09 of its own money upon credit to the contractor, and the owners advanced nothing to the contractor. After the repudiation of the contract by appellant, and after its refusal to take any action whatsoever on behalf of the owners, and after the improvements had been completed by the owners through the aid of the Karren-Tobias Lumber Company, and before acceptance of the improvements, certificates of the architect were made and for the first time the validity of the notes and...