Garrett v. Dodson

• Decision Date: 14 November 1917
• Docket Number: (No. 1236.)
• Citation: 199 S.W. 675
• Parties: GARRETT et al. v. DODSON et al.
• Court: Texas Court of Appeals

Page 675

199 S.W. 675

GARRETT et al. v. DODSON et al.

(No. 1236.)

Court of Civil Appeals of Texas. Amarillo.

November 14, 1917.

Rehearing Denied December 19, 1917.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by S. H. Crossley and others, as trustees of the Methodist Episcopal Church South at Chillicothe, Texas, as successors of O. H. Dodson and others, former trustees, against A. M. Garrett and others, wherein the Decatur Cornice & Roofing Company of Decatur, Alabama, intervened. From a judgment for plaintiffs, defendants appeal. Judgment affirmed.

Cunningham & Oliver, of Abilene, D. E. Decker, of Quanah, and W. J. Arrington, of Paducah, for appellants. L. W. Allred, of Chillicothe, and W. D. Berry, of Vernon, for appellees.

HUFF, C. J.

This action was prosecuted upon an amended petition by S. H. Crossley, E. M. Haynes, R. E. Wafer, J. P. McPherson, D. M. Norwood, John B. Mulky, and A. S. Curry, as trustees of the Methodist Episcopal Church South at Chillicothe, Tex., who alleged that they are the successors of O. H. Dodson et al., who were former trustees of the church and who entered into a certain building contract for the erection of a church in the town of Chillicothe, for that denomination, with one A. M. Garrett, as contractor. The building was to be erected for the sum of $12,477.77, according to certain plans and specifications drawn by one R. H. Stuckey, as architect, and made a part of the contract. And also a suit on a bond executed by W. J. Garrett, P. C. Wray, W. E. Green, and J. Renfro, in the sum of $6,300, conditioned on the faithful performance of the above contract, making the contract and specifications part of the bond. It is alleged that the contractor, A. M. Garrett, defaulted in the performance of said contract and abandoned the building before it was completed, and that under the terms of the contract the building committee of the church took charge of the building and completed it at a cost necessarily greatly in excess of the sum for which Garrett agreed to build the same, and that there was due from the contractor an excess of costs of construction in the sum of $3,140.21, and they also sued for liquidated damages on account of delay and for insurance paid out by the committee, and for a certain sum of $300, paid out on account of repairing a defective roof. The contractor and sureties answered separately, which will not be set out at this time, but will be noticed further on. The answer of the sureties pleaded material alteration in the contract and release thereby and this was replied to by supplemental petition, which will not be necessary to mention; also, there was an intervention by the Decatur Cornice & Roofing Company of Decatur, Ala., claiming an indebtedness for material furnished in the erection of the house to the sum of $752.66.

The first assignment is to the refusal of the trial court to give special charge No. 2. This charge requested the submission of two special issues:

"(1) Was the architect, R. H. Stuckey, named in the plans and specifications, unfair in demands upon the defendant A. M. Garrett, with regard to extra work required under the contract, in allowance for such extra work? (2) Was the architect, R. H. Stuckey, unfair, and did he arbitrarily demand and require the removal of completed work on the building?"

A. M. Garrett, the contractor, in his answer, sets up the following:

"(4) And further answering, the defendant A. M. Garrett says that the architect who was employed as agent and superintendent of the plaintiffs in the construction of said building, immediately after the construction work was begun, commenced a course of unfair and unjust and arbitrary action with regard to the work to be done, and without authority, but with the intent to cause the defendant to abandon said work, demanded that said defendant should on many occasions tear down and destroy work already done by defendant; said work having been done and performed in accordance with said plans and specifications. That plaintiffs and their said architect and agent directed and attempted to compel this defendant to deviate from the plans and specifications of said building and so change the building as to cost the defendant a much greater sum than the same would have cost had said plans been followed, and, after having said plans changed, would not then allow the defendant pay for said change and extra work. That on account of the action of plaintiffs, their agent and employés, this defendant was compelled to abandon said contract, and that, if said building was ever completed at an expense greater than that promised to defendant, then all said extra cost and expense was the result of the many changes made in said plans and specifications. Wherefore defendant prays that he go hence without day and recover from plaintiffs his cost."

It will be perceived from the allegations in the answer of the contractor that it is very indefinite, especially as to the extra work or changes in the contract and as to the work torn down and destroyed. The sureties on the contractor's bond did not plead these acts on the part of the architect and the building committee as acts which breached the contract and justified the abandonment of the contract on the part of the contractor, but did allege that without their knowledge or consent the architect and appellees made numerous changes in the plans and specifications; "that the building under the amended plans and specifications was greatly enlarged; that stone trimmings were directed and caused to be used, which were not provided for in the plans and specifications; that a different brick was used, but a much more expensive brick than that provided for in the plans and specifications; that said brick was lain in a different mortar and in a different manner from that provided in the plans and specifications, which was much more expensive; that plaintiffs, acting through their architect, and acting for themselves, made such changes in the plans and specifications and in the construction of said building as to create a different contract and cause the construction of another and different building," etc.; which changes they plead as a release of their obligation under the bond.

By a counter proposition, appellee contends that as the sureties did not plead the acts of the architect and appellees, causing the work to be torn down and changes to be made as justifying an abandonment of the contract or building, and as they alone are appealing, they cannot complain that the issues were not submitted in the trial court; that as to the sureties, they having failed to plead the issue, there was no error in the refusal of the charge. We think any plea by the principal of the bond, if established, which would release him, will also release the sureties and will inure to their benefit, whether urged by them or not in a separate plea. Under articles 1842 and 1897, judgment cannot be rendered against parties secondarily liable where no judgment is rendered against the primary obligor. If the primary obligor is not liable, the surety would be released upon establishing that fact. It occurs to us that, when the principal and sureties are sued in the same action upon the same contract, if the principal pleads facts showing nonliability which would defeat a judgment against him, whether pleaded by the sureties or not, they could urge, both in the court below and upon appeal, such nonliability under the plea made by the principal. Wills v. Tyer, 186 S. W. 862, and authorities cited; Wandelohr v. Grayson County Nat. Bank, 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046.

We think the court correctly refused to submit the first issue asking a finding whether the architect was unfair in his demands with regard to extra work required under the contract, and in allowance for such work. Under the specifications red brick were called for. It appears, however, that a mottled brick was used instead in the construction. The facts in this case show before the contract was signed up a representative of the brick concern from whom the brick were purchased by the contractor, who under the contract was to furnish all the material in the construction of the building, was present, and the order was then given for the brick. It appears also that the agent of the company selling the brick was called in and asked as to the price of the two kinds of brick, and that he then told the contractor he would sell the mottled brick for the same price as the red, or that they would be the same. He afterwards came in and told the parties he had made a bust as to the price, but that he would make his word good. The contractor, however, testified that the mottled brick cost $2.50 more per thousand than the red but he would not be sure as to that. He says he bought 50,000 mottled face brick, and that it cost him to make that change $125. He admits there was an agreement about it before the contract was signed, and he says when the brick man came back he said he would have to charge more than for the red brick, "and he said he would have to charge me $20 per thousand, and we had some agreement about it, but I do not know what it was—it was verbal." It is conclusive that under the agreement to change the brick the contractor ordered the brick before anything was done on the building, and no complaint was made on that account until this suit.

It is also claimed by one Jim Marlin, who was a subcontractor on the brickwork, that Stuckey had him to raise the grade line in some places about 10 inches more than shown by the plan, which required from 6,000 to 8,000 more brick. It will be observed that there was no allegation, either by the contractor or the sureties, that there was any change in this particular. It is hard to tell just what Marlin means. He says:

"He (Stuckey) did not change his plans, but the number of brick that it took to get up to this grade that he gave us...