Holt v. Purviance

• Citation: 347 S.W.2d 321
• Decision Date: 19 May 1961
• Docket Number: No. 15768,15768
• Parties: Leroy HOLT et al., Appellants, v. Oran M. PURVIANCE, Appellee.
• Court: Texas Court of Appeals

Page 321

347 S.W.2d 321

Leroy HOLT et al., Appellants, v. Oran M. PURVIANCE, Appellee.

No. 15768.

Court of Civil Appeals of Texas, Dallas.

May 19, 1961.

Rehearing Denied June 16, 1961.

Vactor H. Stanford, Dallas, for appellants.

Chester A. Oehler, Dallas, for appellee.

DIXON, Chief Justice.

Our former opinion is withdrawn and this opinion is substituted:

Earlier we dismissed this appeal because the judgment appealed from was not a final judgment in that it did not dispose of the suit as to one of the defendants, J. B. Holt.

On rehearing the parties with our permission have filed a supplemental transcript which contains an order nunc pro tunc showing that all parties defendant except Leroy Holt, doing business as Holt Brothers Builders, were dismissed from the suit at a time antedating the entry of judgment on November 12, 1959.

Under the circumstances we shall be governed by the holdings in Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470 and Heavy Haulers, Inc. v. Nicholson, Tex.Civ.App., 277 S.W.2d 250. The motion for rehearing is sustained. Our order of dismissal is set aside, and we shall proceed with a consideration of the appeal on its merits.

Appellee, Oran M. Purviance recovered judgment against appellant Leroy Holt for $1,905 in a suit charging failure on the part of Holt, a builder, to construct a house in accordance with plans and specifications.

Appellee has filed a motion to dismiss the appeal on the ground that appellant's appeal bond was not filed within thirty days after his motion for new trial was overruled as required by Rule 356, Texas Rules of Civil Procedure.

The record shows that judgment was rendered and entered November 12, 1959, motion for new trial was filed November 20, 1959 and an amended motion for new trial was filed on December 9, 1959. Nothing appears in the transcript to indicate that the court ever acted on either of the motions, so the amended motion will be presumed to have been overruled by operation of law 45 days after the amended motion was filed. Rule 329b, Sec. 4, T.R.C.P. This would mean that the amended motion was overruled on January 23, 1960. Appellant's appeal bond was filed February 15, 1960, which was within the 30 days required by Rule 356, T.R.C.P.

However, appellee points out that there is nothing in the record to show that appellant obtained leave of court before filing his amended motion for new trial as provided by Rule 329b, Sec. 2, T.R.C.P. Appellee contends that because of this failure to obtain leave of court appellant's amended motion for new trial is a nullity, and appellant's original motion must be considered to have been overruled by operation of law on January 4, 1960, 45 days after it was filed on November 20, 1959. Under this method of computation the filing of appellant's appeal bond on February 15, 1960 would be too late to give this court jurisdiction of the appeal.

We do not agree that appellant's amended motion for new trial must be considered a nullity because it was filed without first obtaining leave of court. While we have found no case exactly in point the holding in W. C. Turnbow Petroleum Corp. v. Fulton, 145 Tex. 56, 194 S.W.2d 256, seems to negative appellee's contention. In the Turnbow case the court did act in overruling what he thought was appellant's original motion for new trial. Actually an amended motion had been filed without the court's knowledge or leave. Our Supreme Court held that the trial court's action in overruling the original motion was tantamount to granting leave to amend. The opinion quotes from several cases wherein it is held that the filing of amended pleadings without leave of court is an irregularity, but not such an one as to deprive a party of his right to amend. The court further held that in favor of the right of appeal, a liberal rather than a strict construction would be given to the record. This latter holding has been followed in Ray v. Gage, Tex.Civ.App., 269 S.W.2d 411, 415; Hunt v. Wichita County Water Imp. Dist. No. 2, 147 Tex. 47, 211 S.W.2d 743, 744; and Sanders v. Aetna Life Ins. Co., Tex.Civ.App., 201 S.W.2d 234. Appellee's motion to dismiss the appeal is overruled.

The record presents several unusual features. The contract between the parties, apparently entered into somewhat informally was partly written and partly oral. Appellee agreed to purchase the lot and the house to be built on it by appellant for a consideration of $15,300. There were written plans and specifications, but the only signed copy of the specifications, designated as 'Description of Materials', remained in the possession of appellee. Appellant Holt, the contractor, had a copy of the plans, or blue prints, but apparently did not have a copy of the specifications.

Appellee Purviance testified that he was present at the job nearly every day watching the construction of the house and making notes concerning the job. Appellant Holt testified that with the exception of a complaint that the pocket doors were not working properly, appellee made no complaint prior to the filing of suit that there was anything wrong with the house. It is undisputed that after the house was completed, the deal was closed in the office of a title company, which closing included the acceptance by appellee of a deed to the house and lot from appellant, and a loan against the property which loan had been negotiated in appellee's behalf. However, neither waiver nor estoppel was pled or urged by appellant, so neither defense figures in this appeal.

In his first point on appeal appellant charges error in overruling his oral motion for continuance. There is nothing in the record to show that any motion for continuance, written or oral, was presented to or acted on by the court. But if an oral motion was presented as claimed, appellant is not in position to complain that it was overruled, for courts are not required to consider motions for continuance which are not in writing. Rule 251, T.R.C.P. 13 Tex.Jur.2d 10. Appellant's first point is overruled.

In his second, third and fourth points appellant claims error because of the overruling of (2) his first motion for instructed verdict, (3) his second motion for instructed verdict, and (4) his motion for judgment non obstante veredicto. Motions of this character may properly be sustained when there is no evidence to support the verdict. In this case there was some evidence that appellant failed to comply with the plans and specifications and that appellee suffered some damage because of said failure. Therefore, appellant was not entitled to have his motions sustained. His second, third and fourth points are overruled.

In his fifth point appellant asserts that the court erred in rendering judgment for appellee on the verdict since the overwhelming preponderance of the evidence was that appellant substantially performed the contract. This point requires an analysis of the evidence.

It is astounding that a building contractor would agree to a set of plans and specifications, then proceed to build a house without a copy of the specifications in his possession. But that is exactly what appellant did in this case. The explanation apparently lies in the fact that appellant, had built more than fifty houses in recent years and assumed that the specifications, entitled in this record 'Description of Materials', for this house called for the same type and quality of construction as that which he had put in his other houses and which he considered good workmanship.

In addition to his own testimony appellee relied on the testimony of Elton French, an experienced building contractor, who testified as an expert witness.

Some of appellee's complaints were either ill founded or frivolous. As example out of a total of sixteen defects pled, we cite the following:

(1) Appellee pled that appellant failed to provide seven heat vent registers. Both appellee and French, appellee's own witness, testified the registers were there and installed. Appellee's testimony was that he was told by a furnace man that they were not the right kind of registers. The furnace man did not testify. Appellee's testimony was hearsay, but it was received without objection.

(2) Appellee pled that appellant failed to furnish and install 38 yards of linoleum. French testified that the linoleum was there and installed.

(3) The foundation was not waterproofed. Both appellant and appellee's expert witness, French, testified that they do not waterproof concrete and beam foundations and it is not the general building practice to do so.

(4) Appellant used 1' X 4' facer boards instead of 1' X 6' boards. French testified that the 1' X 4' boards used by appellant are just as good for the purpose as 1" X 6" boards.

(5) Appellant installed a 2" X 4" header in the furance closet instead of a 2' X 6' header. French testified that he preferred the 2" X 4" header because it gave more stability.

(6) Appellant placed the garbage disposal on the left side of the kitchen sink though the specifications called for it to be on the right side.

There were other complaints of the like nature but we shall not continue the enumeration of them.

However, there is evidence of other failures to comply with the specifications, which failures must be considered of greater consequence under appellee's theory of the case. For example, appellant failed to install flashing behind the brick walls. According to the expressed opinion of appellee himself, which opinion was received in evidence without objection, in order to remedy this defect it would be necessary to remove the bricks, install the flashing, then replace the bricks--at...