Graves v. Allert & Fuess

• Citation: 142 S.W. 869
• Parties: GRAVES v. ALLERT & FUESS.
• Decision Date: 24 January 1912
• Court: Supreme Court of Texas

142 S.W. 869

GRAVES v. ALLERT & FUESS.

Supreme Court of Texas.

January 24, 1912.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. A. Graves against Allert & Fuess. A judgment in favor of defendants was affirmed by the Court of Civil Appeals (128 S. W. 940), and plaintiff brings error. Affirmed.

Sam C. Lackey and Proctor, Vandenberge, Crain & Lewright, for plaintiff in error. Davidson & Bailey and Price & Green, for defendants in error.

RAMSEY, J.

On the 9th day of April, 1907, plaintiff in error entered into a contract with Allert & Fuess, whereby the latter undertook to furnish the material and construct for him a building, and to make certain changes in other buildings then located on certain ground situated in the city of Cuero for the sum of $7,700, to be paid under the directions of one Jul Leffland and in accordance with certain specifications in said contract contained. The work proceeded for some time, and seems to have been somewhat delayed, so that on the 29th of July thereafter the parties entered into another agreement, in which it was stipulated that Graves should waive none of his rights under his contract for said building by entering and placing shelving and goods in same, except as to the time limit under which Allert & Fuess would complete same, which was waived with the stipulation that such waiver should not cause the contractors to be any the less diligent in completing same. Thereafter the contractors proceeded with the building, and as the court below found, substantially complied with the terms of the contract in respect thereto. This finding by the district court as well as by the Court of Civil Appeals is assailed by the plaintiff in error, but we think it is fairly supported by the testimony. The architect, Mr. Leffland, was introduced on the trial of the case by plaintiff in error, and at the conclusion of his testimony, by agreement of all parties, it was arranged that he should inspect the buildings at once and make a careful investigation of the alleged defects in them and afterwards testify upon the trial as to same and make an estimate of what, in his judgment as a supervisory architect, would be a proper sum to charge to repair same, so as to put the buildings in shape in accordance with the plans and specifications as agreed upon. After such investigation, he did testify and pointed out some defects in the building. He said, in substance, that there were certain cracks in the wall between buildings 1 and 2, upstairs as well as in the eight-foot section downstairs, but that these did not materially affect the strength or durability of the walls, and that they should be repaired by cleaning out the cracks and filling them with mortar, which could be done at a cost of not over $90. He also testified to certain cracks in the front of building No. 3, which he said amounted to nothing. There was some other matters somewhat more serious, particularly with reference to the ceiling and floors upstairs as well as the roof. However, after testifying to all the matters, he says: "In my judgment as supervising architect according to whose plans and specifications these buildings were to be erected and altered, they are, as I have said, substantially in accordance with the plans and specifications now, and the defects complained of can be remedied in so far as they have not been remedied so as to completely comply with the original plans and specifications at a cost of not exceeding $425. This in my judgment is a very liberal estimate, and it might be done even at a less expense." However, the trial court, evidently considering in this connection other testimony, found that the sum of $900 was a sufficient amount to remedy such incomplete conditions so as to make said construction of said buildings conform substantially to the terms and stipulations of the contract in appearance and durability.

The trial court filed the following conclusions of law as to the measure of damages: "I am of the opinion from the facts in this case that the true measure of plaintiff's damage in this case is the difference in the value of the contract price of construction of the building in substantial conformity to the contract, plans, and specifications and the value of such construction as it now stands in its present condition, which I have found as a matter of fact is the sum of $900, for which plaintiff is entitled to...