Hilton v. Haden Associates, Inc., 17135

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 458 S.W.2d 854
• Docket Number: No. 17135,17135
• Parties: W. E. HILTON et al., Appellants, v. HADEN ASSOCIATES, INC., Appellee.
• Decision Date: 09 October 1970

Page 854

458 S.W.2d 854 W. E. HILTON et al., Appellants,
v.
HADEN ASSOCIATES, INC., Appellee. No. 17135. Court of Civil Appeals of Texas,
Fort Worth. Oct. 9, 1970.

Simon & Simon, and Robert M. Doby, Jr., and W. Weir Wilson, Fort Worth, for W. E. Hilton.

Stone, Tilley, Parker, Snakard, Law & Brown, Fort Worth, for Reliance Insurance Co.

Ed M. Brown, Dallas, for appellee.

OPINION

LANGDON, Justice.

This action under Article 5160, Vernon's Ann.Civ.St., is one to recover from the

Page 855

appellants, W. E. Hilton and Reliance Insurance Company, jointly and severally, for labor and material furnished by the appellee in the prosecution of work performed under a contract. The suit is for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit. Reliance Insurance Company is surety on Hilton's payment bond. It has not filed its brief in this cause.

The case was tried to the court without a jury and the court in response to the request of the appellant, Hilton, made and filed 'Findings of Fact' and 'Conclusions of Law.'

The appeal is from the judgment of the court based upon such findings and conclusions.

We affirm.

In order to clarify the issues involved in the trial court and on this appeal the 'Findings of Fact' and 'Conclusions of Law' filed by the trial court are set forth in full in the paragraphs next following.

'FINDINGS OF FACT

'1. Plaintiff, Haden Associates, Inc., is a Texas corporation, whose president is Dennis R. Haden. Defendant, Reliance Insurance Company (herein called 'Reliance') is an insurance company authorized to do business in the State of Texas. Defendant, W. E. Hilton (herein called 'Hilton') is an individual who resides in the State of Texas and who does business as W. E. Hilton Construction Co .

'2. On April 3, 1967, Defendant Hilton entered into a contract with the Jack County Hospital Board, Jacksboro, Jack County, Texas, to act as general contractor to construct a 50 bed addition to the Jack County Hospital.

'3. On or about April 4, 1967, Defendant Hilton, as principal, and Defendant Reliance as surety, executed a 'Labor and Material Payment Bond' to Jacksboro County Hospital, Jacksboro, Texas, as obligee, for the use and benefit of claimants as therein defined, in the amount of Two Hundred Ninety-Six Thousand Nine Hundred Ninety and No/100 ($296,990.00).

'4. On March 19, 1968, Defendant Hilton entered into a written agreement with Plaintiff Haden Associates, Inc., calling for furnishing and installing vinyl wall covering 'as per color schedule' on the Jack County Hospital job for the consideration of $3,576.00.

'5. On or about May 21, 1968, in accordance with the agreement, Haden Associates, Inc., purchased for the account of Defendant Hilton for use on the Jack County Hospital Addition, all of the vinyl wall covering material, which was in conformity with the plans and specifications and contract documents for such job, necessary to complete wall covering of the specified areas in the Jack County Hospital Addition.

'6. The vinyl wall covering material purchased by Plaintiff Haden Associates, Inc. for the Jack County Hospital pursuant to the agreement with Defendant Hilton, was a specially fabricated material .

'7. On account of many delays on the project caused by Defendant Hilton, Plaintiff Haden Associates, Inc. was not permitted to install the said vinyl wall covering material at the Jack County Hospital Addition until late in the year of 1968.

'8. Beginning approximately November 18, 1968, and ending approximately December 12, 1968, in accordance with the agreement between Plaintiff Haden Associates, Inc. and Defendant Hilton, Haden Associates, Inc. furnished and installed at the Jack County Hospital Addition 60 percent of the labor and specially fabricated vinyl wall materials called for in such agreement.

'9. Since December 12, 1968, Defendant Hilton has refused to permit Plaintiff Haden Associates, Inc. to complete the installation of the vinyl wall covering material already purchased by Plaintiff Haden

Page 856

Associates, Inc. for the Jack County Hospital project.

'10. Since December 12, 1968, Plaintiff Haden Associates, Inc. has been ready, willing and able to complete installation of the said vinyl wall covering materials at the Jack County Hospital Addition in accordance with its agreement with defendant Hilton.

'11. On or about December 20, 1968, Defendant Hilton physically removed himself, his men and equipment, and his telephone from the Jack County Hospital Addition job site. He did not return within a reasonable period of time and has no reasonable expectation of being able to return to the job.

'12. As of December 12, 1968, Plaintiff Haden Associates, Inc. had furnished and installed at the Jack County Hospital Addition in an acceptable manner 60 percent, or $2145.00 in dollar value under the agreement with defendant Hilton, of the labor and vinyl wall covering materials called for in such agreement.

'13. The reasonable cost to plaintiff of completing the furnishing and installing of such material at the Jack County Hospital Addition in accordance with such agreement was $1,431.00.

'14. In February of 1969, Plaintiff Haden Associates, Inc. made demands on Defendant Hilton for payment of $2,145.00 for its completed work on the Jack County Hospital Addition.

'15. J. B. Erwin, the architect on the Jack County Hospital Addition project, approved for payment plaintiff's demand to Hilton for $2,145.00 for 60 percent of the work completed by plaintiff on such project.

'16. The Defendant Hilton has wholly failed and refused to pay such demand or any part thereof.

'17. The reasonable cost to Plaintiff Haden Associates, Inc. for the specially fabricated materials purchased for the Jack County job and left unused is $400.00.

'18. Such material left unused can be sold for $100.00, which is its fair salvage value.

'19. As a result of not being permitted to install such materials on the job, Plaintiff Haden Associates, Inc. has suffered a loss of $300.00.

'20. In February of 1969, Plaintiff Haden Associates, Inc. made demands on defendant Hilton for payment of the $300.00.

'21. Defendant Hilton has wholly failed and refused to pay such demands or any part thereof.

'22. Plaintiff Haden Associates, Inc. was a subcontractor supplying labor and materials on the Jack County Hospital Addition project and as such was a 'claimant' as defined in the 'Labor and...