Ferrier v. Knox County

• Decision Date: 11 January 1896
• Citation: 33 S.W. 896
• Parties: FERRIER et al. v. KNOX COUNTY.
• Court: Texas Court of Appeals

33 S.W. 896

FERRIER et al. v. KNOX COUNTY.

Court of Civil Appeals of Texas.

January 11, 1896.

Appeal from district court, Knox county; W. R. McGill, Judge.

Action by Ferrier Bros. & Wirz against Knox county for money due on contract for building. From a judgment in their favor for the balance of the contract price, but denying their claim for extras, plaintiffs appeal. Affirmed.

Holman & Glasgow, for appellants. Fred Cockrell and Jos. E. Cockrell, for appellee.

HUNTER, J.

This suit was brought by appellants to recover from Knox county an alleged balance, due on the contract for building the courthouse of said county, of $1,750, and for interest and extras, amounting, in all, to $3,945. The defendant pleaded an itemized counterclaim for damages, amounting, in all, to $5,075, and, among the items of damages claimed were: Failing to put up four chimneys, $600; failure to complete house at time specified, $1,000.

The verdict of the jury was as follows:

"We, the jury, find for plaintiffs as follows:

                Interest on $4,000 in bonds at 6%
                  from June 12, 1891, to October 26
                  1891 ................................. $   90 00
                Interest on $6,000 in bonds at the
                  rate of 6% from August 12 to October
                  26, 1891 .............................     75 00
                Balance due contractors to the
                  amount of ............................  1,750 00
                                                         _________
                    Total .............................. $1,915 00
                

"Damages found for defendant as follows:

                Failure in putting up chimneys ......... $300 00
                For failure to complete house in time
                  specified in contract ................  450 00
                                                         _______
                    Total .............................. $750 00
                  "Balance in favor of plaintiffs, $1,165
                               "J. N. Campbell, Foreman."
                

Upon this verdict judgment was rendered for plaintiffs for $1,165; and the plaintiffs, insisting that the judgment is too small, have appealed to this court for revision thereof, assigning numerous errors based on the charge given by the court to the jury, as well as many special charges asked by the plaintiffs and refused by the court, and also to the admission and exclusion of evidence.

There was a written contract, entered into by and between the county and appellants, which contained the following stipulations bearing directly upon the right of appellants to recover:

"Art. 5. Any changes desired by the proprietor (consistent with the proper construction of the work), or found to be necessary by the architect, shall be made as the work progresses, and fair estimate of cost added to or deducted from the amount to be paid as per original contract.

"Art. 6. The value of the changes shall be estimated by the contractor and architect, subject to the approval of the proprietor, and, in case they cannot agree, three disinterested arbitrators shall be chosen in the usual manner, and their decision shall be final.

"Art. 7. The architect and contractor shall value any work to be added, but, in case the contractor declines to do the work at the price satisfactory to the proprietor and architect, the proprietor reserves the privilege to employ other parties to do the work whenever same becomes necessary, and the validity of the original contract shall be in no way affected thereby.

"Art. 8. No payment shall be made for extra work unless done upon the written order of the architect, which order shall state the nature and cost of the work, and state what extra time shall be allowed for the completion of the whole work by reason of the change.

"Art. 9. Any work shown by plans not specially set forth in the specifications, or vice versa, shall be the same as if appearing in both, and anything ordinarily necessary to complete the whole work according to the evident intention of the architect shall be included in the contract."

The testimony of appellants and their witnesses is sufficient to establish that the contractors did the extra work as claimed by them, and that it was worth about what appellants have charged therefor; that appellee had employed one Sam Carson as superintending architect, who was in charge of the work as appellee's agent, and saw the changes being made; that appellants discussed the necessity and propriety thereof with him, and he assented thereto, and approved them, that the county judge was frequently about the building, and saw the changes and alterations and additions, and in some instances consented and agreed to them, and approved them, and said he would see that they should be paid for; and that, on several occasions, one or more of the county commissioners would look over the building and examine the work as it progressed, and saw the changes being made and the extra work being done, and did not object thereto. But no evidence was offered to prove that the commissioners' court ever came to the building in a body and as a court but once, and then upon the invitation of appellants, to examine the walls and work as far as it had progressed, which they did, and expressed themselves pleased with the appearance of the work; but no changes or extras were called to their attention, nor were they asked to approve any changes or extra work whatever. And all of them testify that they did not know of but one extra piece of work, until about the time this suit was brought, when they rejected the claims in commissioners' court; that the extra work referred to was ordered by them and their architect, and they paid for it in cash, amounting to about $300, and that this was the only extra piece of work they knew anything about. The superintendent, Sam Carson, testifies that he knew of the changes made in the staircase and the vaults and the foundation, and probably some others, but did...