Gleghorn v. Russell

• Court: Texas Court of Appeals
• Writing for the Court: Looney
• Citation: Gleghorn v. Russell, 62 S.W.2d 285 (Tex. App. 1933)
• Decision Date: 10 June 1933
• Docket Number: No. 11275.,11275.
• Parties: GLEGHORN v. RUSSELL et ux.

Page 285

62 S.W.2d 285

GLEGHORN v. RUSSELL et ux.

No. 11275.

Court of Civil Appeals of Texas. Dallas.

June 10, 1933.

Appeal from Kaufman County Court; Ben Brooks, Judge.

Suit by J. D. Gleghorn against W. A. Russell and wife. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

W. H. Barnes and Coon & Coon, all of Terrell, for appellant.

Fred T. Porter, of Terrell, for appellees.

LOONEY, Justice.

J. D. Gleghorn sued W. A. Russell and Mary Russell, husband and wife, to recover the balance due on an alleged contract between plaintiff and defendants for certain plumbing and electrical work on two cottages defendants were having built in the city of Terrell, Tex.; the total consideration alleged being $520, or $260 for each house, for the labor and material, including piping for water, gas, and wiring for electrical lights. Plaintiff also alleged that he did extra work on the buildings, amounting to $60.09, making a total of $580.09; that he complied with his contract in its entirety, except setting the fixtures; that he stood ready to perform this unfinished work, but that defendants failed to furnish the necessary material as they had agreed to do; that the original contract was changed, to the effect that defendants agreed to furnish the necessary bathtubs, lavatories, commodes, and sinks, for which they were to be allowed a credit of $75 for each cottage, or a total credit of $150; that defendants paid plaintiff the sum of $162.55 and furnished certain materials of the value of $2.48, making a total credit of $315.03, leaving unpaid $265.06, for which plaintiff prayed judgment.

Defendant W. A. Russell answered separately, to the effect that the land upon which the improvements were made was the separate property of his wife, Mary Russell; that such fact was well known to the plaintiff, when the contract sued upon was entered into; and that by reason thereof he was not personally liable. The defendants jointly answered and urged a general denial, pleaded that plaintiff agreed to do the work alleged, for a total consideration for the two houses of $260; that there was no agreement for extra work and no extra work was performed by plaintiff, as alleged; specially denied that there was any modification of the original contract, whereby the defendants undertook to furnish certain of the fixtures; that plaintiff failed to keep his contract and defendants were compelled to procure material, fixtures, and labor to complete same, leaving plaintiff indebted to defendants in the sum of $95.77, for which they prayed judgment.

At the conclusion of the evidence, the court instructed a verdict for defendants, judgment was rendered accordingly, from which this appeal is prosecuted.

As will be observed, the parties are wide apart as to the nature of the basic agreement entered into. That is, plaintiff alleged that he was to be paid $520, total consideration for the improvements undertaken, $260 for each house; while defendants alleged that the agreement was that plaintiff was to do the entire work for $260.

The contention of each party in this respect, as well as other phases, shown by the allegations, was supported by evidence, presenting a jury question. Appellant assigns error on the action of the court in directing verdict for defendants, and as the evidence conflicted on all essential issues, we are compelled, under the rule that controls in such a situation, to sustain the assignment.

It is now academic that a trial court should never...