Johnson-Sampson Const. Co. v. W & W Waterproofing Co.

• Decision Date: 07 December 1953
• Docket Number: No. 6347,JOHNSON-SAMPSON,6347
• Citation: 274 S.W.2d 926
• Parties: CONSTRUCTION COMPANY, Inc., Appellant, v. W & W WATERPROOFING COMPANY, Inc., Appellee.
• Court: Texas Court of Appeals

Page 926

274 S.W.2d 926

JOHNSON-SAMPSON CONSTRUCTION COMPANY, Inc., Appellant, v. W & W WATERPROOFING COMPANY, Inc., Appellee.

No. 6347.

Court of Civil Appeals of Texas, Amarillo.

Dec. 7, 1953.

Rehearing Denied Jan. 4, 1954.

Storey, Armstrong & Steger, Dallas, for appellant.

J. E. Abernathy, McKinney, for appellee.

PITTS, Chief Justice.

This is a suit for recovery under the terms of a contract. Appellee, W & W Waterproofing Company, a corporation, filed suit against appellant, Johnson-Sampson Construction Company, a corporation, for the balance of $1,632 due under the terms of a contract between the parties, which terms were expressed in telegrams that passed between them, whereby appellant employed appellee, at a stipulated price therein expressed, to repair and seal certain leaks in a grain elevator, which had been previously built by appellant but was owned by Frisco Grain Company in Frisco, Collin County, Texas. In its first amended original answer and cross action appellant denied that appellee completed the work according to the terms of the contract but admitted the exchange of three telegrams between the parties which telegrams constituted the contract. Appellant further alleged that because of appellee's failure to complete the work according to the terms of the contract, it breached the terms thereof, for which reason appellant, in a cross action filed, sued appellee for the sum of $1,432.21, together with $500 appellant had already paid to appellee on the job.

The case was tried to a jury which found that appellee had performed its part of the contract according to its terms and judgment was therefore accordingly rendered for appellee for the sum of $1,632, together with lawful interest thereon and appellant was denied any recovery on its cross action. Appellant perfected an appeal to the Dallas Court of Civil Appeals of the Fifth Supreme Judicial District and the same was transferred to this Court by the Supreme Court in equalizing the dockets.

In its first and fourth points appellant charges the trial court erred in its refusal to sustain its motions, respectively, for peremptory instruction and for judgment non obstante veredicto. Appellee has challenged appellant's first point, that is, its alleged grounds for peremptory instruction therein stated, for the alleged reason there is an inconsistency between the grounds stated by appellant in point one and the grounds previously stated in its motion for peremptory instruction, for which reason appellee contends that such point should not be considered by this Court. An examination of the record reveals there is some merit to appellee's challenge. The record clearly reveals that the terms of the contract between the parties is contained in three telegrams that passed between them as pleaded by both parties. The first telegram was sent by appellee to appellant on May 18, 1951, making a proposal to do the work in question, which work was there detailed; appellant replied thereto on the morning of May 19, 1951, acceepting appellee's proposal with a slight change therein proposed; the latter was accepted and confirmed by appellee in the afternoon of May 19, 1951. In its motion for a peremptory instruction appellant says in part, in support of its motion, that 'The written contract sued upon as contained in the three telegrams is uncontroverted'. In both its pleadings filed and in the said motion appellant stands upon the contract as reflected by the three telegrams and contends, in effect, in its said motion that the terms of the contract, as a matter of law, have been breached by appellee. Whereas in its first point appellant charges that its motion for peremptory instruction should have been sustained by the trial court 'because appellant's telegram of May 19, 1951, constituted a rejection of the original proposal by appellee and amounted to a counter offer which was accepted by appellee'. It therefore appears that in its motion for peremptory instruction presented by appellant after the evidence closed and before the case was submitted to the jury, appellant approved and relied upon appellee's proposal by telegram to do the work with slight amendments made thereto. However, after the jury rendered its verdict against appellant, it now seeks to change its position and contends that appellant, by its telegram sent to appellee on May 19, 1951, rejected appellee's original offer and made a counter offer which appellee accepted, thus contending now that the contract is based solely upon the last two telegrams exchanged between the parties and not upon all three telegrams as contended previously in its said motion as well as in its pleadings. There is no pleading to support appellant's contention now made that the contract is based only upon a counter offer and acceptance.

Such an inconsistency does not furnish a sound basis for a proper point of error. But, be that as it may, appellant further contends in its said point one that the uncontroverted evidence reveals that appellee did not comply with the terms of the contract. Such a contention is contrary to the jury finding. If there by any evidence of probative force to support the jury finding, both appellant and this Court are bound thereby. It is elementary law that in testing the sufficiency of the evidence to determine if it will support a jury finding, we must give credence only to the evidence and circumstances favorable to the jury finding and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such finding.

In examining the evidence in accordance with such rules, we find that B. L. Weaver, Sr., testified that he was a partner in appellee's corporation, and the person who negotiated the contract in question for appellee and that he supervised the labor in question. He further testified that his original price proposed for doing the labor was $1,997 and that appellant accepted his proposal with a suggested change of $2,132 as the consideration with the difference...