Essex v. Murray

• Decision Date: 10 May 1902
• Citation: 68 S.W. 736
• Parties: ESSEX et al. v. MURRAY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 736

ESSEX et al. v. MURRAY.¹

Court of Civil Appeals of Texas.

May 10, 1902.

Appeal from Tarrant county court; C. R. Bowlin, Special Judge.

Action by James Murray against W. S. Essex and others. From a judgment for plaintiff, defendants appeal. Reversed.

W. S. Essex and J. M. Mothershead, for appellants. Jas. S. Davis, for appellee.

CONNER, C. J.

This suit was instituted in the county court of Tarrant county by appellee to recover from appellants certain collateral securities or their value, consisting of a promissory note for $650, made by S. P. Gibson, and a certified check for $100. From the judgment in appellee's favor this appeal has been duly prosecuted.

The issues and facts necessary to an understanding of our conclusions may be thus briefly stated: On July 15, 1899, one Angus McLeod contracted with the Missouri Avenue Methodist Episcopal Church South in the city of Ft. Worth to erect, in accordance with certain plans and specifications, a church building for the contract price of $9,179. One Howard Messer was employed as the architect under whose "directions" (acting as agent of said owner) and to whose "satisfaction" said building was to be completed. Among other things, the contract provided: "Sec. 3. Should any alterations be required in the work shown or described by the drawing and specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration upon the written order of the architect, and the valuation of the work added or omitted shall be referred to three (3) arbitrators (no one of whom shall have been personally connected with the work to which these presents refer), to be appointed as follows: One by each of the parties to this contract, and the third by the two thus chosen; the decision of any two of whom shall be final and binding; and each of the parties hereto shall pay one-half of the expense of such reference." "Sec. 9. The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work." The contract also provided that at stated periods the architect should make estimates of the value of the work and material, and pay to the contractor 90 per cent. thereof; the balance, not to exceed the contract price, to be paid upon the completion and acceptance of the building. And it was further provided that, should the contractor abandon the contract and building, the church should have the right to complete the work, "at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor, but, if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner." To secure the contract so made, McLeod gave bond with appellee as surety. The latter as further security also deposited with appellants, members of the church building committee, the collateral for the recovery of which this suit was instituted; it being stipulated by separate written contract then made by appellee that in case of default on the part of McLeod the trustee therein designated should proceed to collect said collaterals, and apply the proceeds "to the payment of whatever damages said church may suffer by reason of the failure of said McLeod to perform his covenants." McLeod in fact defaulted. For labor and material furnished by McLeod the church paid on certified estimates of the architect $8,165, and in the further construction and completion of the building the further sum of $1,711.70; thus paying in all the sum of $697.75 in excess of the contract price. Hence arises the contention of appellants, fully set out in their answer, that they have the right in behalf of said church to retain and apply, so far as necessary, the collateral sued for in accordance with appellee's said contract. In answer to this appellee asserts: (1) That the church from time to time paid McLeod more than 90 per cent. of the value of the labor and material furnished by him, and that, therefore, appellee, as surety for McLeod, was discharged; and (2) that certain changes in the turrets from the original plans and specifications were made, and certain specified extra labor and material was furnished by McLeod in the erection thereof, for which, under his contract, he was entitled to compensation, the aggregate value of such extras being alleged to be in a sum more than said amount overpaid by the church.

By demurrer to the petition and by objection to charges given and refused, appellants first insist, in substance, that appellee failed to show right for an allowance of the value of the extras submitted in the charge of the court because of a failure to allege and prove compliance with the terms of the contract relating thereto, in that it was not alleged or proven that notice to the church had been given of the change...