Graves v. Allert & Fuess

• Citation: 128 S.W. 940
• Court: Court of Appeals of Texas
• Decision Date: 11 May 1910
• Parties: GRAVES v. ALLERT & FUESS.

128 S.W. 940

GRAVES v. ALLERT & FUESS.

Court of Civil Appeals of Texas.

May 11, 1910.

Rehearing Denied June 8, 1910.

Error from District Court, De Witt County; James C. Wilson, Judge.

Action by J. A. Graves against Allert & Fuess. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Lackey & Lewright, for plaintiffs in error. Price & Green and Davidson & Bailey, for defendant in error.

FLY, J.

The parties occupy the same position on the docket here as in the district court, and consequently will be denominated as they were in that court. Plaintiff sought to recover of defendants damages in the sum of $5,000, alleged to have accrued by reason of the breach of a certain building contract. Defendants answered by general denial and specially pleaded a full compliance with the terms of the contract, and claimed a balance of $2,150 on the contract price as well as $627.45 for extras and additional work done by them. The district judge tried the cause and rendered judgment in favor of defendants for $1,215, with interest at 6 per cent. from October 7, 1907. That judgment was reached by allowing defendants $2,150 for amount due by plaintiff on the contract price, and $175 for extras, amounting to $2,325, from which was deducted $900 for the difference in the contract price of the building, if built according to the terms of the contract, and the value as erected, and $210 for delay, aggregating $1,110, which deducted from $2,325 leaves $1,215. The court held the measure of plaintiff's damage to be "the difference in the value of the contract price of the 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." This is very ambiguous, but it may be inferred from the judgment that the court meant to hold that the measure of damages was the difference between the balance unpaid on the contract price and what it would take to complete the building, because $2,325 was unpaid on the contract price, and from that sum the amount necessary to complete the building properly and the damages for delay were deducted, leaving as a remainder the amount of the judgment. It is the contention of plaintiff that the true measure of damages is the difference between the value of plaintiff's buildings as actually repaired and constructed, and their value if they had been repaired and constructed according to the plans and...