Dorr v. Stewart

• Decision Date: 31 December 1848
• Citation: 3 Tex. 479
• Parties: F. F. DORR, Appellant, v. CHARLES STEWART, Appellee
• Court: Texas Supreme Court

3 Tex. 479

F. F. DORR, Appellant,

v.CHARLES STEWART, Appellee

Supreme Court of Texas.

December Term, 1848.

Appeal from Galveston County.

In charging the jury on the law of covenants, the judge ought to give the legal construction of the covenants to which he refers.

This was a suit brought by Stewart, the plaintiff in the court below, to recover of the defendant, Dorr, damages for an alleged breach of contract entered into between them on the 15th day of February, 1847, by which the plaintiff agreed to do the carpenter's work on a brick store, for Dorr, and furnish materials for the same. The brick work was to be done by Wm. B. Nichols. The mutual agreement of the said parties, in relation to the terms, and the time and manner of the completion of said work, are contained in the following provisions embraced in said agreement. After enumerating the various kinds and species of work to be done, the plaintiff on his part agreed and undertook as follows: “I am so to arrange my work that it may not conflict with or delay the work of any of the parties to be engaged in constructing the building. I am to do all the work in and about the store that properly comes under the head of carpenter's work, and to furnish materials for the same at my own cost. I further agree to perform the said work in and about the building as fast and as rapidly as may be required by Mr. Nichols, so that the mason's work may not be delayed, neither that of the tinsmith; and further, I agree that all my work shall progress, if not delayed by Mr. Nichols, so that the store shall be completed for occupancy not later than the 29th day of April, 1847, and I am to have twenty days for its completion after the brick walls are up. In case it shall not be finished by or before the said 29th of April, 1847, by reason of neglecting or failing to accomplish my portion of the work in and about the building, as I have agreed to do, as above, I agree to forfeit, as damages, two dollars per day, for each and every day after the said 29th day of April, until my portion of the work shall be finished; and I hereby authorize Dorr, or his agent, to retain out of the money I am to receive under this agreement, the said forfeiture of two dollars per day, as damages. For the faithful execution of the above work, and for the materials to be furnished by me, it is understood I am to receive from said Dorr, or his agent, $230 in cash, as I may require the same, for the purchase of materials; and, also, when my work shall be completed, I am to receive from said Dorr, or his agent, one share of the stock of the Galveston city company, which I hereby agree to take in part payment of what may be due to me under this agreement, at a valuation of fifty per cent. if par, namely $500.

The said Dorr, on his part, agreed as follows: “I, the above named F. F. Dorr, agree to pay to the above named Charles Stewart, in cash, the above named sum of $230, as fast as he may require the same, for the purchase of materials for said building; and I further agree to convey, at the time specified above, to the said Charles Stewart, at a valuation of $500, one share of the stock of the Galveston city company -- making in the above items of property, a total of seven hundred and thirty dollars, being for materials to be furnished by, and work to be done by, said Stewart in erecting said building, as described in the foregoing agreement of said Stewart.”

The defendant demurred to the plaintiff's petition; pleaded the general issue; charged the breach of the contract to have been on the part of the plaintiff, and claimed damages therefor, etc. The demurrer was overruled, and verdict and judgment rendered for the plaintiff for $420 damages.

A motion for a new trial was then made by the defendant, on the ground that the verdict was contrary to law and the evidence, and because certain instructions had been improperly given, and others refused, by the court. This motion was refused, and the defendant appealed.

From the statement of facts contained in the record, it appears that Dorr advanced to Stewart $230 to purchase materials; that Nichols failed to procure bricks in time; that, at Stewart's request, written instructions were given to him (Stewart) by the agent of Dorr, to suspend the wood work until further orders, to which Stewart consented; that sometime afterwards Nichols procured the bricks, and was ready to proceed with the work, and requested Stewart to commence his part of the work, by laying down the timbers mentioned in the contract, which was necessary to be done before the brick work could go on; that Stewart refused to proceed, etc. The charge of the judge will be found in the opinion of the court.

WEBB and DUVAL for appellant.

ALLEN and GILLESPIE for appellee.

Mr. Justice LIPSCOMB delivered the opinion of the court.

In this case suit was brought by the appellee against the appellant to recover damages for a breach of covenant. It was for carpenter's work, to be done and performed by Stewart on a brick building about to be erected for the appellant in the city of Galveston. There was a verdict and judgment for the plaintiff in the court below, from which the appellant took an appeal to this court. There has been sent up to this court a great mass of testimony embodied in the statement of facts; and the pertinency of much of it to the issue is not perceived. Leaving, however, a statement of the case to be presented by the reporters, we will proceed to the investigation of what we conceive to be material.

We believe that the correctness of the judgment of the court below rests almost exclusively on the charge of the judge to the jury, and the construction therein given to the covenant, for the breaches of which damages are claimed. The charge of the judge we will insert here, but leave the covenants to which it refers to be recited by the reporters. It is as follows, i. e.:

1st. “That the covenants are dependent. That Mr. Stewart's contract to perform the carpenter's work was a covenant, or in the nature of a covenant, dependent upon that of Mr. Dorr contained in, or implied by, the instrument sued on; and if Stewart was prevented from performance by any act, neglect or obstruction on the part of Dorr, or those in his employ, to complete the masonry or brick work on the store, Stewart was entitled to recover the same amount of Dorr as he would have been if he had completed the carpenter's work according to the terms of his contract.”

2d. “That when, by a sealed contract, work and labor are to be done by one party, and a price or sum of money is to be paid therefor by the other, upon a suit by the first party for the contract price, he is entitled to recover the same, if the jury believe he is ready and willing to have peformed the...