Johnson v. White

• Decision Date: 16 May 1894
• Citation: Johnson v. White, 27 S.W. 174 (Tex. App. 1894)
• Parties: JOHNSON et al. v. WHITE.
• Court: Texas Court of Appeals

27 S.W. 174

JOHNSON et al. v.WHITE.

Court of Civil Appeals of Texas.

May 16, 1894.

Appeal from district court, Wilbarger county; George A. Brown, Judge.

Action by John A. White against Johnson, Cooke & Murray on a contract.From a judgment for plaintiff, defendants appeal.Affirmed.

Bradburn, Smith & Basham, for appellants.Stephens & Huff, for appellee.

Conclusions of Fact.

HEAD, J.

On the 3d day of September, 1889, Johnson, Cooke & Murray entered into a contract in writing with John A. White, by which the latter undertook to furnish the material and erect for the former a two-story brick building in the town of Vernon, Wilbarger county, Tex., upon the terms, and according to the plans and specifications, therein set forth.By the terms of this contract, Haggart & Sanguinet were appointed superintending architects, and were given the usual powers in reference thereto, among which was the power to reject the whole or any part or portion of the material or work which might not, in their opinion, be in strict accordance with the letter and spirit of the contract.Their opinions, certificates, reports, and decisions in all matters were also made binding and conclusive.Payments were to be made as follows: "When foundation is completed, $400; when second story joists are on, $1,600; when roof is on, $1,650; when plastering is done, and sashes in, $1,200; when stair is completed, $800; and $1,150 on the completion and delivery of said work, and having been accepted by the architects and superintendents."The four first payments were made, as stipulated in the contract, upon the certificates of the architects, but no certificate was given for the last two payments until the 17th of June, 1890, the certificate for these payments made on that date being as follows: "Vernon, Texas, June 17, 1890.Messrs. Johnson, Cooke & Murray, Vernon, Texas — Gentlemen: This is to certify that John A. White is entitled to two last and final payments, as per contract, amounting to eight hundred and eleven hundred and fifty, respectively ($1,950), for the erection of your store building on the corner of Main and Pease streets, Vernon.Respectfully, Haggart & Sanguinet."The verdict, however, establishes that the building was in fact completed and delivered to defendants on the 16th day of March, 1890.This suit was instituted by appellee to recover the $1,950 alleged to be due for the last two payments, evidenced by the above certificate, and for the foreclosure of his mechanic's lien upon the building and lot upon which it was erected.The contract called for the completion of the building by the 1st of January, 1890, and stipulated for five dollars per day damages for each day after this; due allowance to be made for delay caused by rainy weather, and delay in the shipment of material, which the jury finds extended the time to the 15th of February, 1890.Appellee's contract, under which he claimed his lien, was not recorded until July 21, 1890.Verdict and judgment were rendered in the court below, in favor of appellee, for the amount sued for, less the five dollars per day damages from the 15th of February, when the building should have been completed, to the 16th of March, when it was actually finished.From this judgment, appellants prosecute this appeal.

Opinion.

Appellants' first assignment, which relates to the alleged action of the court in overruling their general demurrer, cannot be sustained, because the record does not disclose that such ruling was made.

Appellants' second assignment, which calls in question the action of the court below in overruling special exception to that part of plaintiff's second amended original petition which attempts to declare upon a quantum meruit, presents no reversible error, because (1) it is believed that the whole petition, when taken together, was sufficient to authorize a recovery by appellee, in case he had failed to show a compliance with his express contract; (2) no injury is shown to have resulted to appellants from this ruling of the court, because the verdict of the jury shows that the recovery was in fact had upon the ground that appellee complied with his contract, and the finding in his favor was based thereon.This verdict is as follows: "We, the jury, find that plaintiff complied with his contract in the construction of defendants' building; that said building was completed and delivered to defendants on the 16th day of March, 1890; that after deducting delay caused by rainy weather, and delay in shipment of material, said building should have been completed and delivered on the 15th day of February, 1890, — and find balance due plaintiff on said contract to be $1,700, together with interest thereon at the rate of 6% per annum from the 16th day of March, 1890."We therefore conclude that, if error there was in this ruling of the court, it presents no sufficient reason for setting aside this verdict, the sufficiency of the petition as to the express contract not being called in question.

Appellants' third assignment, which calls in question the action of the court in permitting appellee to testify to a mistake in the written plans and specifications, in so far as they called for gas fittings, "because no sufficient predicate had been laid by plaintiff in his pleadings to warrant such testimony," cannot be sustained.It is admitted that the proper allegations were made in the supplemental petition, but it is contended that they cannot serve as a basis for the admission of this evidence, because they should have been made in an amendment to the original petition.We incline to the opinion that these allegations were sufficiently in reply to the answer of appellants, charging a failure to put in these fixtures, to authorize their insertion in a supplemental petition; but, be this as it may, this objection should have been made by exception, and, not having been so presented, we are of opinion that the court properly held that appellants could not avail themselves thereof by objection to the introduction of evidence.Lemp v. Armengol (decided by our supreme courtMay 10, 1894) 26 S. W. 941.Questions will frequently arise, whether or not given facts should be set forth in amended or supplemental pleading; and we think questions of this kind should be treated as waived, if not presented at the proper time by demurrer.

We regard the certificate of the architects, copied in the conclusions of fact, complained of in appellants' fourth assignment, as amply sufficient in form, under the contract.Boettler v. Tendick, 73 Tex. 493, 11 S. W. 497.

Appellants' fifth assignment is as follows: "The court erred in permitting plaintiff, over objection of defendants, to testify that he had been delayed in the construction of the building on account of rainy weather, and delay in shipping the material, because plaintiff had laid no predicate in his petition for such testimony."The predicate was fully laid in the supplemental petition.

Appellants' sixth assignment is as follows: "The court erred in permitting plaintiff to read in evidence to the...