Godde v. Wood

• Decision Date: 30 April 1974
• Docket Number: No. 835,835
• Citation: 509 S.W.2d 435
• Parties: Edward F. GODDE, Appellant, v. John H. WOOD, Jr., Appellee.
• Court: Texas Court of Appeals

Page 435

509 S.W.2d 435

Edward F. GODDE, Appellant, v. John H. WOOD, Jr., Appellee.

No. 835.

Court of Civil Appeals of Texas,

Corpus Christi.

April 30, 1974.

Rehearing Denied May 23, 1974.

David B. Connery, Jr., Rockport, for appellant.

Melvin A. Krenek, San Antonio, Wm. H. Bloch, Rockport, for appellee.

OPINION

BISSETT, Justice.

This is a statute of limitations case. Involved is a debt alleged to be due under an oral building contract. Edward F. Godde, the contractor, filed suit on December 16, 1971 against John H. Wood, Jr ., the owner, to recover $6,547.05 claimed to be due him for building a home for defendant on Key Allegro Island, Rockport, Texas . After a jury trial, the trial court rendered judgment that plaintiff take nothing by his suit on the ground that plaintiff's cause of action accrued more than two years before commencement of suit, and was, therefore, barred by Article 5526, Vernon's Ann.Civ.St., and that the lien theretofore asserted by plaintiff against defendant's property was null and void. Plaintiff has appealed. We affirm. The parties will be referred to as plaintiff and defendant as they were in the trial court.

Plaintiff alleged that he and defendant entered into an oral contract for the building of a house for defendant, which called for him to furnish the 'time, labor and materials' required under the plans and specifications, that he fully performed under the contract, and that defendant refused to pay him $6,547.05, which he alleged to be the balance due him under the contract.

Defendant, in addition to pleading that plaintiff agreed to construct and complete the home on or prior to November 15, 1969, for a maximum contract price of $27,000.00, also raised the defense of the two year statute of limitations. Plaintiff, in his supplemental petition, alleged that defendant was absent from the State of Texas during the month of December, 1969, and that he was entitled to have excluded from the limitation period all of the time during which defendant was out of the State.

The case was submitted on 10 special issues. The jury, in response to Special Issues 1, 2, 4, 5 and 10, found: that the parties entered into an oral contract on or about May 15, 1969, whereby plaintiff undertook to construct a residential dwelling and other improvements for defendant in accordance with certain plans and specifications furnished by defendant (Special Issue 1); that such agreement obligated defendant to make progress payments to plaintiff and ultimately to pay to plaintiff the total cost of the materials used, the plaintiff's time, labor and related costs (Special Issue 2); that defendant was indebted to plaintiff on December 26, 1969, in the amount of $6,547.05 (Special Issues 4 and 5); and that the house had not been finished on or before December 11, 1969 (Special Issue 10). Those answers are not attacked in this appeal by anyone.

The jury, in response to Special Issues 3, 6, 7, 8 and 9, further found: that plaintiff 'constructed the residential dwelling and related improvements for the defendant and completed the obligations required of him' under the oral contract on December 19, 1969 (Special Issue 3); that plaintiff 'finished the work comtemplated by the parties' oral contract and delivered possession thereof to the defendant Wood on or prior to November 17, 1969' (Special Issue 6); that plaintiff 'finished the work contemplated by the parties' oral contract and delivered possession thereof to defendant Wood on or prior to December 11, 1969' (Special Issue 8); that defendant, in his letter of November 24, 1969 to plaintiff, notified plaintiff that he did not intend to make any further payments to plaintiff (Special Issue 7); and, that defendant's wife advised plaintiff on December 12, 1969 that defendant, in effect, did not owe plaintiff any more money for building the home (Special Issue 9).

Neither plaintiff nor defendant objected to the court's charge, to the form or substance of any issue contained therein, or to the submission of any issue. No one requested the submission of any additional issues.

Plaintiff relied solely upon the alleged oral agreement. He did not plead in the alternative for recovery on quantum meruit for the construction of defendant's home, or for the value of any extra or additional materials, labor or services furnished or performed in addition to those require of him under the oral agreement. He requested no issue thereon and obtained no finding as to the reasonable value of the work generally, or of such 'extras' or 'additional items'. No contention was made in the trial court and none is made in this Court that the parties did not enter into a contract for the building of defendant's home.

Plaintiff, by seven points of error, complains that the trial court erred in refusing to disregard the jury's answers to Special Issues 6 and 8, because there was no evidence to support such findings (Points 1 and 3), and that such findings were against the overwhelming weight and preponderance of the evidence (Points 2 and 4); that the trial court erred in refusing to disregard the answers to Special Issues 7 and 9 because the issues were evidentiary in nature and were immaterial as a matter of law (Points 5 and 6); and, that the trial court erred in overruling plaintiff's motion for a mistrial because there was a fatal and irreconcilable conflict between the jury's finding in response to Special Issue No. 3 and the jury's findings in response to Special Issues 6 and 8 (Point 7).

During the course of construction, progress payments, pursuant to plaintiff's requests, in the total amount of $32,000.00 were made by defendant to plaintiff. The last of such payments, in the sum of $4,000.00, was made on November 12, 1969. The contract did not provide for fixed dates for the making of progress payments, nor did it specify the date final payment was to be made to plaintiff.

There is evidence from defendant, his wife, and from disinterested persons, that at sometime between November 8 and November 11, 1969, plaintiff represented to defendant that the $4,000.00 would be the last, full and final payment due him under the contract, and that plaintiff assured defendant that if defendant paid him that sum of money that he (plaintiff) would pay all outstanding bills for labor and materials and all other completion costs.

Defendant, on November 24, 1969, wrote plaintiff a letter, wherein the statement was made: '. . . Of course I now expect you to completely finish my house for the amounts which I have paid to you.'

On December 12, 1969, plaintiff asked defendant's wife for $600.00, which he said he needed in order to pay $400.00 to the painters as their wages for the work week which ended on that day, and $200.00 to 'clean up what was left there for incidentals'. Mrs. Wood refused and, in her own words, told plaintiff: 'We're not going to pay you another dime, because we've put out all the money we can.'

Plaintiff, in his brief, says that the fact of completion of the project on December 19, 1969 'is established by the only credible evidence of record, namely invoices for material supplied by Bracht Lumber Company on December 19, 1969 . . . as augmented by the plain fact that at least one subcontractor, Moody Electric, billed plaintiff for the 'balance on job complete' in the sum of $250.00 on December 20, 1969'. We disagree.

Plaintiff, when asked on cross-examination if he alleged in his petition that the work required of him under the oral contract had been substantially completed in November, 1969, answered:

'You said 'completed in November'. It wasn't completed. We had to finish up the painting outside, which the weather was holding us up on. And the little incidentals that she (Mrs. Wood) thought of later. When I moved to these other jobs, I thought it was complete.'

It is undisputed that plaintiff commenced other jobs sometime prior to December 5, 1969. When asked: 'And you were totally finished by Thanksgiving?', he replied:

'No, other than painting outside, and little odds and ends, and he (Mr. Wood) was satisfied with that.'

Plaintiff was asked by defendant's counsel to state exactly what was done on the home after November 23, 1969. In addition to saying that the painters 'touched up on the inside' and that the 'touching up' was done 'just before--around the 15th of December, somewhere thereabouts', his answer was:

'Well all I did out there was put that dryer in when it came . . . The dryer and the electric heater . . . Alex Lerma repainted some of the outside railing and bannisters because the foggy weather had caused the original paint to come off. . . .'

When asked on direct examination the date that the Entire project was completed, plaintiff stated:

'Oh, let's see, the last part of December or around . . . well, I returned some stuff there to Wagley's . . . or to Bracht's, I mean, aftr Christmas. I got my last credit check . . . credit slip'.

The record shows that the last credit slip from Bracht was made on December 23, 1969.

Bracht Lumber Company furnished materials in the amount of $14,277 .67. Plaintiff paid Bracht $10,000.00 on account. All of the materials were delivered before December 11, 1969, with the exception of two quarts of paint ($7.28) which were bought on December 13, 1969, and a gallon of paint ($5.62) which was purchased on December 19, 1969. According to plaintiff's own testimony, the painter, on or after December 12, 1969, was ordered to paint the 'railing that the water or the dew had washed off' and to do 'some touching up around there on the cabinets or something inside'. Plaintiff was invoiced by Bracht on December 29, 1969, for the balance of $4,277.67 due on the materials bill.

Moody Electric Company, the electrical subcontractor, was paid a total of $1,200.00 (for wiring that house and renovating the chandeliers) up to and including November 21, 1969. On December 20, 1969, it invoiced plaintiff for $250.00, with the...