Gale v. Spriggs

Decision Date11 May 1961
Docket NumberNo. 3835,3835
Citation346 S.W.2d 620
PartiesLouis GALE, dba Gale Builders Supply Company, Appellant, v. Frank SPRIGGS et ux., Appellees.
CourtTexas Court of Appeals

Abe Dunn, Houston, for appellant.

Bryan & Patton, Houston, for appellees.

TIREY, Justice.

This action by Spriggs and his wife was brought against the building contractor for breach of written construction contract that provided for the addition of one room to their home. The contractor filed a counter action against the plaintiffs alleging that the contract had been substantially performed and that he was entitled to receive compensation on a quantum meruit basis. The jury, in its verdict, found substantially: (1, 2 and 3) That the contractor failed to perform in a good and workmanlike manner the construction work on the addition to plaintiffs' home, and that such failure could not be remedied without impairing the existing building, and that the reasonable market value of plaintiffs' home on the date when the contractor last performed any work to be $9,800; and (4) That the reasonable market value of plaintiffs' home on the date when the defendant last performed any work on it if the addition to it called for by the contract in question had been completed in a good and workmanlike manner would have been $12,500. The jury was instructed: 'If you have answered Special Issue No. 1, 'We do', and only in that event, then answer Special Issue No. 7.' (7) 'Do you find from a preponderance of the evidence that such failure, if any, was done with malice?' to which the jury answered 'We do.' The court instructed the jury: 'By the term 'malice', is meant the doing of an act willfully and knowingly in violation of the rights of the plaintiffs and to his injury.' The court further instructed the jury: 'If you have answered Special Issue No. 7, 'We do', and only in that event, then answer Special Issue No. 8.' (8) 'From a preponderance of the evidence, what amount of exemplary damages, if any, do you find in favor of the plaintiffs against the defendant?' to which the jury answered '$1500.00'. (9) That the contractor did not substantially perform, in good faith, all of the remodeling in accordance with the contract entered into with the plaintiffs; and (11) That the addtion to plaintiffs' house, in the condition it was in when the defendant last performed any work, failed to enhance the value of plaintiffs' property; and (12) That the plaintiffs did not prevent the contractor from completing the job in accordance with the contract.

The court overruled the contractor's motion for judgment non obstante veredicto and granted plaintiffs' motion for judgment, and in the judgment we find this recital: '* * * based upon the answers and verdict of the jury, that plaintiffs are entitled to the following judgment against the defendant: * * * that plaintiffs, * * * recover of and from the defendant the sum of $4200.00, which amount shall bear interest at the legal rate of 6% per annum from the date of this judgment until paid; fendant: * * * that plaintiffs, * * * from the defendant all costs of court incurred in this cause. * * *' Defendant seasonably filed his motion for new trial and it being overruled perfected his appeal to the Houston court and the cause is here on transfer.

The judgment is assailed on what appellant designates as three points, they are substantially to the effect that the Court erred: (1) In failing to grant defendant's petition for discovery, inspection and photographing in order that he might make a proper appraisement, inspection, measurement and exterior photographs of the work done by him; (2) In granting a judgment to the plaintiffs for exemplary damages in the amount of $1,500 because there was no evidence to raise such issue and no evidence to support the finding of the jury and that such findings are contrary to the overwhelming preponderance of the evidence as to be manifestly wrong; (3) That the court erred in submitting Special Issue No. 4, because it assumed that the building was not constructed according to the contract, and that such issue was not an independent issue, but should have been predicated on Special Issue No. 1, which had to do with whether or not the defendant had failed to perform in a good and workmanlike manner the work on the building.

Evidence was tendered to the effect that appellees' home was off the Hempstead Highway within the city limits of Houston, and for this home they had paid $10,350, the exact date of the purchase is not shown; that in August 1958, appellees entered into a written contract with appellant to put an addition on their house, such addition to consist of a den, bath and closet; that work was started about August 23, 1958; that appellant promised to take care of the necessary permits, and that this he failed to do; that on September 9, 1958, an inspector from the City of Houston went to the job site and stopped the job and ordered the builder to come in for a permit; that the concrete slab had already been poured, and the framing and siding and roof were already on, and the interior sheetrock had been installed; that under these conditions the inspector could not inspect the slab and could not tell if it would pass inspection. The city plumbing inspector testified to the effect that he went to the job site on a report of work being done without a permit, and he found the plumbing already 'roughed' in and the work that had been done covered up; that he found one pipe laid on top of a sidewalk, contrary to the city code, and that he could not determine if the plumbing work at the time he was out to make an inspection would pass the city inspection. It appears that while he was out at the job site, or along or about that time, that the plumbing permit was obtained. The city electrical inspector testified that he first went to the job on September 12, 1958 for the purpose of checking the work, because no permit had been issued; that the city routinely makes one inspection when the framework is up, and before any sheetrock is put on; that thereafter a final inspection is made after the completion, but when he arrived the wiring was all enclosed and he could not make an inspection at all; that no electrical permit had ever been issued up to the time of the trial, and he could not say whether it would or would not pass inspection, as the wiring was all covered over; that the electrical meter had been moved without a permit. Testimony was also tendered to the effect that the job was done in an extremely poor manner; that the foundation was not square; that the walls were out of plumb; some of the windows were out of plumb; that the roof was buckled; that the foundation was not properly tied in to the existing slab; that the slab appeared to be defective as evidenced by moisture inside the room; that the slab was not properly beamed around the edges; the windows were not properly installed; that the addition was so poorly constructed that it actually caused the value of the house to depreciate. Testimony was also tendered to the effect that with the addition in its existing state, the house had a value of $9,875, but the house without the addition even being on it, had a value of $10,600. Testimony was further tendered to the effect that had the addition been completed in a good and workmanlike manner, it would have increased the value of the house to $12,500 from the $10,600 value it had before the addition was put on. Testimony was further tendered to the effect that before the addition could be put in a livable condition. it would have been necessary to remove the cedar shakes to permit an electrical inspection; that the windows and doors would have had to be removed and reinstalled so as to match the rest of the house; remove the water connection above the ground and install it below the ground; remove the shakes and framing to plumb the west wall; install an eighteen inch beam under the existing slab; plumb the other walls as needed, finish the inside plumbing, level the slab and install asphalt tile; install electrical circuits, and that it would be necessary to weather strip and fit the doors, varnish and paint the interior, flash the roof, remove the buckles from the roll roofing, and square the foundation. The defendant tendered several witnesses, among them was Mr. Kalmick, sales manager who obtained the contract from the plaintiffs, and it is undisputed that the total contract price was to be $2,380. Mr. Pyle, the cement contractor, was tendered as a witness, and he testified to the effect that the work as a whole was constructed in the usual and customary manner, and in accord with the method for soil conditions that existed in Houston. A Mr. Barlow, the plumber, testified to the effect that he was a master plumber, and that he 'roughted' in the work, and that the work was done in a good and workmanlike manner. Mr. Ben Ross testified to the effect that he was the expediter and general supervisor for the defendant, and that he supervised all the construction jobs of the company, and he had been with the company since 1954; that he was on the job from time to time as and when needed; that he kept up with the work and corrected the complaints made to him by the plaintiffs, and he testified in great detail as to the construction and installation of all the work. He was interrogated very fully about the construction generally, and about the plumbing and the electrical fixtures, and assuming that the inquiries related to poor construction were true, etc. that it would cost approximately $591.20, to complete the job, and that this would amount to completing it in a good and workmanlike manner. In fact, he testified specifically:

'Q. All of these items that we have here, Mr. Ross, could you possibly send out some men and get that work done for the figure that we've got up there? A. Probably a little less--I can do it.

'Q. You could do...

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