Hewitt v. Buchanan

• Citation: 4 S.W.2d 169
• Decision Date: 17 June 1927
• Docket Number: (No. 312.)
• Parties: HEWITT et al. v. BUCHANAN et al.
• Court: Court of Appeals of Texas

Page 169

4 S.W.2d 169

HEWITT et al. v. BUCHANAN et al.

(No. 312.)

Court of Civil Appeals of Texas. Eastland.

June 17, 1927.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Action by J. C. Buchanan against George W. Hewitt and others, consolidated with action by the Cary-Schneider Investment Company and others against J. C. Buchanan and others, and in which various lien claimants intervened. From a judgment for plaintiffs Buchanan and others in the consolidated suit, defendants and some of the interveners appeal. Reversed and remanded.

Etheridge, McCormick & Bromberg, of Dallas, for appellants.

W. B. Hamilton, Burgess, Burgess, Chrestman & Brundidge, Spafford & Loftus, Eugene De Bogory, and T. B. Reese, all of Dallas, for appellees.

PANNILL, C. J.

George W. Hewitt contracted with E. H. Cary and Leon Blum to erect an office building in the city of Dallas, now known as the Medical Arts Building, for the contract price of $612,099, excluding certain fixtures. Performance of this contract was guaranteed by bond of the Fidelity & Deposit Company. Hewitt, with the consent of Blum and Cary, contracted with appellee Buchanan to build the structure according to the plans and specifications, a part of Hewitt's contract, with certain additions, for the sum of $565,085. Buchanan's contract was secured by a bond of the Massachusetts Bonding & Insurance Company. Both bonds ran in favor of the subcontractors and materialmen. Blum and Cary assigned their rights in the contracts to Cary-Schneider Investment Company, a corporation. The work was begun by Buchanan under the supervision of the architects, Overbeck & Whitson. A dispute arose over the fifth estimate. C. R. Barglebaugh was substituted for Whitson, and the fifth estimate paid. Buchanan then assigned payments due and to become due to him, to his surety, as collateral for sums advanced by it to complete the building, without change in the status of the parties to the assignment. Later, another assignment was executed by him to interveners, Murphy and Mayfield.

Work was continued until the twelfth estimate. To this Buchanan attached a list of extras in his favor. Payments were made on the estimate last referred to, and Buchanan claimed a balance on this estimate and for extras of $26,849.63. Thereafter the building was completed, and possession taken by Cary-Schneider Investment Company, under an agreement that it was without prejudice to the rights of either party. Overbeck accepted the building as completed according to the contract. Barglebaugh refused to join in this acceptance. Various claims were made by the appellants, Cary-Schneider Investment Company, Hewitt and his surety, of the defects in the work. Buchanan presented a claim for extras in the sum of $88,975.61, in addition to the claim stated above. Cary-Schneider Company and Hewitt entered into a contract wherein it was agreed that their interests did not conflict, and that a settlement should be had between them on the basis of two accounts to be made up, called the Hewitt account and the Cary account, respectively. The Hewitt account was to be made up of the following items: The original contract price, extras furnished by Hewitt, and claims established in favor of Buchanan or his surety for extras furnished by them; all sums paid Hewitt on the contract price or for extras, the amounts established by Cary-Schneider Company against either Hewitt or Buchanan for damages for failure to perform the contract were to be included in the Cary account; the parties owing the difference to pay same; Cary-Schneider to bear all expense of litigation, to pay any judgment obtained by Buchanan against Hewitt, and to be reimbursed for any such payment by Hewitt.

The litigation was begun by Cary-Schneider Company and Hewitt against Buchanan, his surety, subcontractors and materialmen, to wit, Murphy, Mayfield, Vitrolite Construction Company, Blue, Sanford, and Pittsburgh Plate Glass Company, in the Fourteenth district court of Dallas county for damages alleged to be due for unfinished work and for defective work, and the material used, in the sum of $100,000. This claim was based on alleged defects in workmanship and material as to fire doors, wall tile, painting, millwork, plastering, walls being out of line, leaks in the basement, defective cement topping for floors, tile roof of the building, and terra cotta ornaments. Later, Buchanan filed suit against Hewitt and his surety in the Forty-Fourth district court for extras furnished according to his claims as stated above. Cary-Schneider Company had their suit transferred to the Forty-Fourth district court and by motion consolidated with the suit of Buchanan.

The case went to trial with Buchanan and his surety as plaintiffs, Cary-Schneider Company, Hewitt, and his surety as defendants, and the materialmen and subcontractors named above as interveners. The case was submitted on 110 special issues. The jury's findings are in effect (1) that Buchanan erected the building in accordance with the contract; (2) against Cary-Schneider Company's claim as to default and defects in the erection of the building; (3) in favor of Buchanan, his surety, and the subcontractors and materialmen as to extras claimed in the sum of $50,287.88, on which verdict judgment was entered. Cary-Schneider Company, Hewitt, and his surety have appealed, and they will hereafter be referred to as appellants. Buchanan and his surety will be referred to as plaintiffs, and the other parties interveners will be named when necessary.

As stated, the appeal is from the judgment in the consolidated suit. The record is large in volume. The transcript, statement of facts, and briefs run well over 2,000 pages. Appellants present 42 propositions as supporting 84 assignments. Appellees advance 79 counter propositions. This situation demands rigid economy as to the space used in disposing of the points raised. Therefore only such discussion as is absolutely required to make clear the rulings made will occur hereinafter. Further statement needed to render intelligible the propositions under review will be made.

By motions prior to the trial, and after the evidence was closed, appellants sought to occupy the position of plaintiffs in the consolidated suit, but the requests were denied. This action is assigned as error. Reliance is on the claim that the amount due by Buchanan to his assignees exceeded the amount plaintiffs sued for, and that the amount of Buchanan's recovery was less than the amount due to his surety, the Massachusetts Bonding Company. Therefore, Buchanan had no interest in the controversy, and his presence in the suit as plaintiff was a mere camaflouge, designed only to influence the jury and obscure the fact that his surety was the real plaintiff. The authorities cited to support the claim noted are those holding that, after assignment of the claim, only the assignee can sue thereon. Appellees assert that the assignment was collateral, the legal title remaining in Buchanan, and that he could, with the consent of the assignees (all of whom were in court), prosecute the suit, as held in Houston City St. Ry. Co. v. Storrie (Tex. Civ. App.) 44 S. W. 693, American Insurance Union v. Allen (Tex. Civ. App.) 192 S. W. 1087.

The assignees being before the court and recognizing the right of Buchanan to prosecute the suit, he was not without the legal right to do so. Therefore, the question is one of the proper exercise by the trial court of its discretion. The court placed upon Buchanan the burden of proving that he erected the building in accordance with his contract, and that he placed extras in the building as claimed by him. It is not believed that it can be held that the learned trial judge abused his discretion, and the assignments in regard to this matter are overruled.

Special issue No. 1 submitted to the jury the question as to whether Buchanan had performed his contract according to its terms and the changes made by the agreement of the parties. In connection with this issue, the jury was instructed, in substance, that the performance submitted meant performance without deviations, omissions, or defects, except such as were so slight as to affect neither the use nor the appearance of the structure, and except such as resulted from a departure by the architects and owners from the plans and specifications, or as resulted from the directions of the architect or owner. Subsequent issues submitted performance of the contract in detail as to millwork, paint, plastering, cement, and other alleged defects detailed above. A number of objections were made to issue No. 1; namely, that it constituted a general charge, and that the charge allowed the jury to distinguish between the directions of the owner and those of the architect. It is insisted that the architects had no authority to deviate from the specifications.

Issue No. 1 and the court's instruction in connection therewith, in substance as stated above, submitted the entire case of appellants against Buchanan and his surety. The answer thereto included, not only substantial compliance with the entire contract in every particular, but also each excuse presented by appellants for every defect the jury might find. This is apparent when the evidence is considered. In several instances, the subcontractors admitted that the work done was defective, but excused the defects by reason of the directions of either the architect, Barglebaugh, Dr. Cary or Hewitt. This clearly constituted issue No. 1 a general charge. Ft. Worth & D. C. Ry. Co. v. Morrow (Tex. Civ. App.) 255 S. W. 674; Southland Life Ins. Co. v. Ballew (Tex. Civ. App.) 268 S. W. 1029; Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 559; Lancaster v. Daggett (Tex. Civ. App.) 272 S. W. 340; T. & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 191.

The inclusion by the court in the determination of performance of every...