Gordon-Jones Const. Co. v. Welder

• Decision Date: 20 February 1918
• Docket Number: (No. 5910.)
• Citation: 201 S.W. 681
• Parties: GORDON-JONES CONST. CO. et al. v. WELDER et al.
• Court: Texas Court of Appeals

201 S.W. 681

GORDON-JONES CONST. CO. et al. v. WELDER et al.

(No. 5910.)

Court of Civil Appeals of Texas. San Antonio.

February 20, 1918.

Rehearing Denied March 20, 1918.

Appeal from District Court, Victoria County; Jno. M. Green, Judge.

Suit in nature of an interpleader by John J. Welder against the Gordon-Jones Construction Company and others. From a judgment, certain defendants appeal. Judgment reformed and affirmed.

C. A. Keller, of San Antonio, and R. L. Daniel and C. F. & C. C. Carsner, all of Victoria, for appellants. H. M. Aubrey, of San Antonio, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellees.

SWEARINGEN, J.

John J. Welder, the appellee, filed this suit in the nature of an interpleader against the appellants, Gordon-Jones Construction Company, the Alamo Iron Works, Peden Roofing Company, Monarch Metal Manufacturing Company, G. D. Robbins, Texas Glass & Paint Company, Chas. Lucas Company, Elgin-Butler Brick & Tile Company, New Jersey Terra Cotta Company, J. Desco & Son, Uhrich Planing Mills Company, R. P. Field, and the Collinsville Manufacturing Company, and against a number of other parties who did not appeal from the judgment of the trial court. The defendants were materialmen, subcontractors, laborers, the original contractor and its bondsmen, and the Victoria National Bank, an assignee of the contractor. The purpose of the suit was to secure a legal adjustment of the respective rights of all parties in and to the contract price promised by the owner, Mr. Welder, to the contractor, the Gordon-Jones Construction Company, and also to determine the liabilities of the contractor and its bondsmen to Mr. Welder.

Without the intervention of a jury, the court rendered judgment dismissing many of the defendants, none of whom appealed. The judgment decreed:

"That after all due allowances to the plaintiff (Welder) under and by virtue of his contract with the defendant the Gordon-Jones Construction Company there remains in his hands the sum of $17,598; that out of said fund the defendant the American Cement Plaster Company is entitled to be paid the sum of $1,056.28, the defendant the American Three-Way Prism Company is entitled to be paid the sum of $858.32, and the defendant Al La Fleur is entitled to be paid the sum of $556, of which amount the plaintiff is entitled to receive the sum of $185 by virtue of written assignment executed by the said defendant; that after the three payments indicated above are made the defendant the Victoria National Bank, of Victoria, Tex., is entitled to be paid out of said fund in full the promissory note executed by the Gordon-Jones Construction Company to said bank for the principal sum of $11,000, dated December 15, 1913, and bearing interest at the rate of 8 per cent. per annum until paid, interest payable annually, and is likewise entitled to be paid the balance of $650, balance due upon a promissory note for $2,650, executed by the Gordon-Jones Construction Company to the said bank, dated December 15, 1913, with interest on said balance from said date until paid at the rate of 8 per cent. per annum, interest payable annually, aggregating the sum of $14,633.34; that after the above-mentioned payments are made out of said fund the remainder thereof, or so much of the remainder as may be necessary to pay 46 2/3 per cent. of the claim of the defendant the Monarch Metal Manufacturing Company, which, for the purposes of this decree, is fixed at $2,135, should be applied to said claim of said defendant; then, after this amount has been paid, the remainder of said fund, or so much thereof as may be necessary, shall be distributed in proportion to the respective amounts of the unpaid balance of their claims between the said Monarch Metal Manufacturing Company and the defendant the Alamo Iron Works, whose claim, for the purposes of this distribution, is hereby fixed at the sum of $1,782.51. No lien is held to exist in favor of either defendant named in this section. After the payment above set forth, out of said fund, the remainder thereof, if any, should be distributed among the remaining defendants, in proportion to the respective amounts of their claims, excepting as hereinafter set forth, said claims of said defendants, for the purpose of this distribution, being fixed as follows:

                R. P. Field ......................... $  320 15
                Uhrich Planing Mills Company ........  2,325 00
                Elgin-Butler Brick & Tile Company ...    256 10
                Collinsville Manufacturing Company ..    739 79
                J. Desco & Sons .....................  1,157 03
                New Jersey Terra Cotta Company ......    872 87
                Texas Glass & Paint Company .........    393 83
                American Paint Company ..............  1,433 50
                Chas. Lucas Company .................    139 00
                Peden Roofing Company ...............    517 50
                National Marble Company .............    431 22
                

"Provided, however, that no distribution shall be made of any of said funds to the defendant J. Desco & Sons or to the defendant the Collinsville Manufacturing Company until each and all of the other distributees under this section shall have been paid 50 per cent. of the amount of their claims, as herein fixed. When fifty per cent. is paid to each of the remaining distributees named in this section, then the said defendants the Collinsville Manufacturing Company and J. Desco & Sons shall participate in the distribution of the remainder of said fund, in proportion to the amount of their respective shares. No lien is held to exist in favor of either defendant named in this section. Each and all of said above-named defendants are entitled to a judgment for the full amount of the claim fixed in favor of each against the defendant the Gordon-Jones Construction Company, and from its trustee in bankruptcy, H. M. Abernathy, subject only to such payments as may be made upon their indebtedness from the distribution of this fund."

The original petition alleged a contract whereby the Gordon-Jones Construction Company bound itself to construct a building for the appellee Welder for a stipulated price; that in accordance with the contract the contractors partially erected the building, when it abandoned the contract, after which the owner, Mr. Welder, as stipulated in the contract, completed the building according to the contract specifications; before the abandonment of the contract the contractor was paid by the owner 80 per cent. of the architect's estimates; to complete the building after the abandonment by the contractor, the owner spent a large sum of money; that by reason of delay in completion of the building the owner suffered damages liquidated by the terms of the contract. It was alleged that a large amount of the contract price remained in the owner's hands which he desired to pay to those entitled to it.

The appellees herein severally answered, setting out their accounts for material or labor or their subcontracts, stating the amount claimed by each, and each claimed a mechanic's or materialman's lien on the building. Each claimed a personal judgment against the owner as well as against the contractor.

No objection being raised in appellants' briefs to the trial court's findings of fact, except the twentieth, which we find to be supported by the evidence, we adopt them as our findings of fact:

"Conclusions of Fact.

"First. The plaintiff, John J. Welder, on, to wit, the 23d day of November, 1912, contracted with the defendant The Gordon-Jones Construction Company for the erection of the five-story bank and office building described in the pleadings, the plaintiff being the owner and the said construction company the contractors, the total consideration to be paid being $135,949.

"Second. That, in accordance with the terms of said contract, the contractor furnished plaintiff bond in the sum of $67,874.50 to secure to plaintiff the faithful performance of said contract, on which said bond the Texas Fidelity & Bonding Company was surety.

"Third. That by the terms of said contract the construction company undertook to complete the said building within 220 working days from the date of the contract, and in case of failure so to do the said construction company contracted to pay to plaintiff as liquidated damages the sum of $50 per day for each and every day it should be in default in the performance of this provision; any sums of money falling due under this provision to be retained by plaintiff out of any sums of money in his hands due or to become due to the contractor.

"Fourth. That said contract also provided, in substance, that if the contractor should for any reason fail in the performance of any of the stipulations of said contract, the owner should be at liberty to terminate the employment of the contractor and to complete the work and provide necessary material therefor, and in such case the contractor should not be entitled to receive any further payments under said contract, but provided that the bondsmen of the contractor should have the right, should they so desire, to complete the contract in case of such default.

"Fifth. The contract further provided, in substance, that if the contractor should fail to pay any claim for which, if established, the owner of the premises might become liable, the owner should have the right to retain an amount of money sufficient to completely indemnify him against such claims, and should there prove to be any such claim after all payments were made, the contractor should refund to the owner all amounts that the latter should be compelled to pay. The bond given binds the contractor and its surety to fully indemnify and save the owner harmless against all loss, damages, and cost which he may suffer or incur by reason of the failure of the construction company to carry out and perform its contract.

"Sixth. That after the execution of said contract and bond the defendant the Gordon-Jones Construction Company began the erection of said building and continued said work until the 29th day of January,...