Dallas Nat. Bank v. Peaslee-Gaulbert Co.

• Citation: 35 S.W.2d 221
• Decision Date: 13 January 1931
• Docket Number: No. 10719.,10719.
• Parties: DALLAS NAT. BANK v. PEASLEE-GAULBERT CO. et al.
• Court: Court of Appeals of Texas

Page 221

35 S.W.2d 221

DALLAS NAT. BANK v. PEASLEE-GAULBERT CO. et al.

No. 10719.

Court of Civil Appeals of Texas. Dallas.

January 13, 1931.

Rehearing Denied February 14, 1931.

Appeal from District Court, Dallas County; Grover Sellers, Judge.

Suit by the Peaslee-Gaulbert Company against the Dallas National Bank and E. V. Ashworth and others, in which the named defendants filed cross-actions. From an adverse judgment, the Dallas National Bank appeals.

Affirmed.

J. L. Lipscomb and McBride, O'Donnell & Hamilton, all of Dallas, for appellant.

Turner, Rodgers & Winn and Leachman, Gardere & Bailey, all of Dallas, for appellees.

VAUGHAN, J.

The parties litigant to this appeal are the Dallas National Bank, appellant, incorporated under the banking laws of the United States, Peaslee-Gaulbert Company, incorporated under the laws of the state of Kentucky and operating in the state of Texas under a duly authorized permit, and E. V. Ashworth, appellees. For brevity, appellee Peaslee-Gaulbert Company will be referred to as appellee company.

On August 10, 1928, appellee company, as plaintiff, filed its suit against appellant and appellee Ashworth as defendants. On June 14, 1929, appellee Ashworth filed his first amended original answer to appellee company's petition and to the cross-action of appellant against him and his original cross-action over and against appellee company, Henger & Chambers Company (William C. Henger and James F. Chambers), and appellant bank. By its suit, appellee company sought to recover judgment against appellant and appellee Ashworth as defendants, for the sum of $2,415.75, being the balance alleged to be due on account of and for certain paint material sold by said appellee to appellant and appellee Ashworth to be and which were used in painting a certain office building, contracted for by appellant, and the foreclosure of its materialmen's lien against appellant and its property described in its pleadings.

Appellee company bottomed its right to recover against appellant and appellee Ashworth on the following terms and provisions of two contracts, viz.:

(a) Contract made and entered into by and between appellant, as owner, and Henger & Chambers Company, contractors, hereinafter referred to as contractors, on March 1, 1926, containing, among other things, the following provisions:

"Article 1. The contractors shall and will provide all the materials and perform all the work for the erection of a new bank and office building on the South side of Main Street, Block 77 of the City Survey, which site is now occupied by the Deere Building.

"Article 2. It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final.

"Article 3. No alteration shall be made in the work except upon written order of the architect."

"Article 5. It is mutually agreed that if it should become necessary to stop the work on account of the city opening Stone Street through to Commerce Street, or other similar occurrences, owner shall pay for the entire cost of the work up to that point including labor and materials incorporated in the work, materials on the site and work and materials contracted for whether or not delivered, unless cancellation under amicable agreement can be obtained. Owner shall also pay contractor pro rata of his commission up to the point at which the work is stopped.

"Article 6. For no fee in addition to that specified under Article 1x, the contractor shall demolish and remove the present (Deere) building; either doing so with his own forces, assorting and storing such of the materials as can be consistently used in the new building or doing this work under sub-contract with others as appears for the best interest of the owner and as he directs. As part of his services, contractor shall secure competitive prices on materials and sub-contract, shall analyze and make comparative tabulation to the owner and architect for his decision before placing the orders.

"Article 7. Removal of old building shall begin on April 1, 1926, unless owner instructs to the contrary."

"Article 9. It is mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be the actual net cost to the contractor (see definition of `cost' below), plus a fee of $28,000 for his services. It is agreed that the word `cost' as used in this contract shall include the actual net cost to the contractor of all materials, labor, freight and drayage, trucks and team hire, supplies, services, the lease of patent scaffold appliances, rental on storage place, premiums on insurance and bonds, salaries of Superintendents, Timekeepers, Watchmen and others actually engaged on the work, the cost of fuel, telephone, lights, water, the cost of sub-contract work, temporary buildings and hoisting towers and other expenses incident to the construction of the building"

—and the following portions of the plans and specifications referred to in said contract, viz.:

"Sub-Contractors: The names of all sub-contractors proposed to be employed shall be submitted for approval of the architects before they are employed. Sub-contractors must be of the first standing in their respective lines. The work required of each sub-contractor shall be the work described in his sub-division of the specifications and shall be performed in the same manner as though he were a principal to the contract.

"Foreman: Any careless or incompetent workman must be removed forthwith by the contractor, when notified to do so by the Architects.

"Cutting Away: The contractor shall not cut away any timber, dig under any foundations or into any wall or other structural part of the building, or in any case allow same to be done without the full knowledge and consent of the Architects.

"Duties of Architects & Superintendents: The duties of the Architects in addition to those stated elsewhere herein, will consist in giving on application such interpretation either in language, writing or drawings as in their judgment the nature of the work may require; in deciding upon the quantity and quality of all workmanship and material,— In case any workman, foreman or sub-contractor shall refuse to carry out instructions of the Architects or attempt to slight the work in any manner, he must be removed from the work forthwith by the contractor upon notice from the Architects.

"Substitutes and Equals: The owner reserves the right to substitute materials and change the kind of materials and the manner of doing work, provided such change or substitutions do not interfere with the progress of the work or entail an extra expense on the contractor. Where the word `Equal' is used, it is the intent that the Architects shall be the sole judge.

"Workmen & Superintendents: All workmen and superintendents of general contractor and sub-contractors, shall be acceptable to the Architects and owner. Should the Architects demand the removal of such for cause, he shall be removed on two days notice in writing."

Contract of date, November 17, 1926, executed by and between appellee Ashworth and the contractors, submitting terms and conditions upon which contractors were willing to sublet to appellee Ashworth, viz.: "All of the painting, finishing and decorating, both interior and exterior, for the Dallas National Bank, in accordance with the plans and specifications of Coburn-Smith & Evans, architects, for the sum of $17,295. This work is to be done when required and kept apace with the progress of the building subject to our supervision in all respects. This proposal is conditioned on your using material of the Peaslee-Gaulbert Company and on your furnishing us a surety bond executed in accordance with form outlined attached, all work and materials to be furnished on this order to be in accordance with the plans and specifications, and to be approved by the architect or his representatives."

Said appellee company contended that, under the above provisions of said contracts, appellant made appellee Ashworth the agent of appellant, to the extent of purchasing paint material necessary to comply with the terms and provisions of said subcontract.

Appellee Ashworth based his right to recover against appellee company, appellant, and William C. Henger and James F. Chambers, copartners, the sum of $1,435.56, the actual cost of labor in applying the fourth coat of paint to appellant's said office building, over and above the original contract price for labor and material performed and used in applying the three coats of paint under said contract of date November 17, 1926, under the following contracts: (a) A contract alleged to have been made on the date a conference was held, about March 1, 1927, at which time appellee Ashworth, Charles P. Jarrott, the appellee company's manager at Dallas, D. F. Coburn, one of appellant's architects, Oscar Bruce, vice president of appellant bank, and James F. Chambers one of appellant's contractors, and alleged to have been made at said conference under the following circumstances, viz.: "That at said conference Henger & Chambers Company, Dallas National Bank and Peaslee-Gaulbert Company were all advised by this defendant that he had complied with his contract by applying one coat of size and two coats of paint, and that said disfiguration that appeared in the walls after having received the third coat, as contracted for (known as hot spots) due to the size, or the paint, or both, furnished by the Peaslee-Gaulbert Company, or to error in the specifications, and that if they required him to apply additional paint and size to remedy the condition he would have to make extra charges for all work and material over and above one coat of size and two coats of wall paint, and that it was agreed at said conference...