Johnson Aircrafts v. Wilborn

• Decision Date: 05 October 1945
• Docket Number: No. 14710.,14710.
• Citation: 190 S.W.2d 426
• Parties: JOHNSON AIRCRAFTS, Inc., v. WILBORN et al.
• Court: Texas Court of Appeals

190 S.W.2d 426

JOHNSON AIRCRAFTS, Inc., v. WILBORN et al.

No. 14710.

Court of Civil Appeals of Texas. Fort Worth.

October 5, 1945.

Rehearing Denied November 16, 1945.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by F. E. Wilborn and others against Johnson Aircrafts, Inc., for expenses paid for labor growing out of a written contract under which defendant employed plaintiffs to build parts of an airplane defendant had designed, wherein the defendant filed a cross-action. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Mack Taylor, of Fort Worth, for appellant.

Joe F. Orr and Walter B. Scott, both of Fort Worth, for appellees.

SPEER, Justice.

F. E. Wilborn, John C. Sanders, W. O. Wilborn, and W. R. Cox sued Johnson Aircrafts, Inc., a corporation, for expenses paid for labor growing out of a written contract made between the named corporation and F. E. Wilborn, W. F. Oliver, and John C. Sanders under which contract the corporation employed the last three named parties to build and construct parts of a plane the corporation had designed; allegations are made that those instituting the suit were the owners of the account.

Johnson Aircrafts, Inc., has appealed from an adverse judgment entered on a jury verdict rendered on three special issues submitted. The corporation will be referred to as appellant and plaintiffs who instituted the suit will be called appellees.

The written contract out of which this controversy arose is rather lengthy and bore date of March 18, 1943. Obviously it was designed to cover many contingencies. We shall refer to pertinent parts of it without setting it out in full. Among other things it provided for the manufacture by appellees of certain parts of the "control surface" of an aeroplane appellant had designed; appellant agreed to furnish space in its plant for appellees to perform the contract; appellees agreed to furnish all "equipment," "jigs," and "fixtures" necessary to manufacture the parts contemplated; appellees were to be compensated for the manufacture of said parts either (1) at a cost plus plan, (2) upon a fixed price per unit, or (3) per ship, as may be determined by the mutual consent of both parties (appellant and appellees), after appellees shall have manufactured for appellant and it had received ten ships; settlement for work and said manufacturing to be made according to schedule of Government contracts. [Emphasis ours.) Appellees were to furnish all payroll money used by them prior to the time actual production shall have begun on said ships; but that when production had begun, appellant would furnish funds for payrolls. There is a condition in the contract that appellees will "pay" (loan) to appellant $5000 to be repaid by appellant on or before six months with interest at six per cent per annum. The contract was to last for the duration of the present war, and if appellant began a program of building commercial planes, the parties would negotiate with each other for a continuation of the contract. That the "jigs" and "machines" (made by appellees) shall be the property of appellant and appellees may not remove them from appellant's plant, and further: "However, the party of the second part (appellees) shall have the right of reimbursement for any amount of money expended by him (them) in labor in building, erecting and manufacturing said jigs and machines." There is a further provision in the contract to the effect that such work, manufacture and production of parts by appellees, should be under the supervision of appellant and in harmony with its engineering standards.

The record discloses that appellees did loan appellant the $5000 provided for in the contract, and perhaps as much as $8000 more subsequent to the execution of the contract. On August 28, 1944, appellees sued appellant for amounts alleged to be owing for borrowed money and for $4187.52 for labor expended in the manufacture of certain jigs, machines and fixtures which they asserted they had obligated themselves to make and manufacture, under the contract; they attempted to show the necessity for and asked that a receiver be appointed to wind up appellant's business. Apparently appellant paid to appellees the borrowed money with interest after suit was filed, and on September 8, 1944, appellees filed their first amended petition omitting the borrowed money items and prayer for receivership, and sought only a recovery of the $4187.52 item for labor in the manufacture of the parts.

Appellant, as defendant below, answered with general denial, special pleas in defense and a cross action for damages for alleged libelous statements made by appellees claimed to be injurious to appellant's good name and credit. For lack of evidence the court found against appellant on its cross action and no complaint is made thereof on this appeal, and we need not give it further attention. We have mentioned this phase of the case only because of a paragraph in appellant's answer, to which we shall later refer.

Appellant answered by admitting the execution of the contract of March 18, 1943; that there was a controversy between it and appellees on and prior to August 28, 1942 (obviously an erroneous date); that appellant claimed it did not owe appellees any sum whatever and that appellees claimed it owed $4187.52. We think it necessary to copy paragraph 6 of the answer because of contentions raised on appeal. That paragraph reads:

"Defendant denies each and every allegation in said petition contained, and here now alleges that the work alleged to have been performed, and service alleged to have been rendered by the plaintiffs herein under the terms of said contract and agreement were not according to specifications which had been theretofore laid down by the defendant in accordance with said contract, and that the completed product and services rendered was of no value to the defendant herein; that under the terms of said contract the plaintiffs herein were to furnish all labor, material and equipment for the erection of certain jigs and forms, which said jigs and forms were to be delivered to the defendant herein and all costs for the preparation thereof were to be paid for by the plaintiffs, and when said jigs and other equipment and fixtures and manufactured products were accepted by the defendant then the defendant was to pay for the same, and the defendant alleges that such manufactured products, jigs and fixtures, when so delivered if the same were delivered, were not according to the specifications and plans outlined by the defendant to the plaintiffs and were by the defendant rejected, and therefore the defendant alleges that it is not indebted to the plaintiffs in any sum of money whatsoever."

Points one and two relied upon by appellant for reversal are said by it to be "under assignment of error No. one." That assignment asserted error of the trial court in overruling its motion for an instructed verdict because "under the terms of the contract between the parties no amount of money ever became due." The reconstructed assignment of error was taken from the first paragraph of appellant's amended motion for new trial. The motion for new trial constitutes the assignments of error to be reviewed by the appellate court. Rule 374, Texas Rules Civil Procedure. A "point" relied upon must be germane to one or more assignments of error. Rule 418, T.R.C.P. It must follow that to entitle a point to consideration there must be an assignment of error. We then look to the alleged assignment of error to ascertain if the court erred in the matters complained of in the assignment. Did the court err in overruling appellant's motion for an instructed verdict? At the close of appellees' testimony and also at the close of all evidence, appellant filed a motion requesting the court to instruct a verdict in its favor. No grounds for the request were included in the motions. The court entered no order thereon but marked them "Refused" dating and signing same. Rule 268, T.R.C.P. provides "A motion for directed verdict shall state the specific grounds therefor." The purported motion for an instructed verdict containing no grounds therefor, specific or otherwise, cannot be considered as such a motion, under the rule cited. Certainly under the cited rule the court did not err in "refusing" to sustain such a motion for a directed verdict, hence the assignment of error that the court erred in overruling the motion is not well taken. If the assignment of error must fall for the reasons stated, "points" under it must likewise fail.

Practically half of appellant's printed brief is devoted to points one and two, one phase of which we have above noticed. These points may further be discussed in connection with points 8 and 9. The substance of these four points is: (1) The legal effect of the contract between the parties was that the labor performed by appellees, even though if accepted by appellant, was to be at their own expense until actual production of the aeroplanes began, hence nothing was due them; (2) because appellees obligated themselves to erect parts (of the aeroplane) in harmony with the engineering standards of appellant, and nothing was due them until the requirements were met; (8) before appellees could recover in this case, it was necessary for them to show performance of the contract according to its terms; and (9) the words "labor expended" as used in the contract involved, means money paid out to those hired to do the labor and not salaries charged by the contracting parties (appellees here) who themselves were to make a profit on the labor expended. Appellant follows the last "point" with this parenthetical statement: "By motion for instructed verdict the appellant challenged the sufficiency of the evidence." Counsel fills his brief with statements of the law, quotations from opinions and citation of authorities to the effect that before one suing on a contract can...