Kilgore v. Northwest Texas Baptist Educational Soc.

• Decision Date: 09 November 1896
• Citation: 37 S.W. 598
• Parties: KILGORE et al. v. NORTHWEST TEXAS BAPTIST EDUCATIONAL SOC.
• Court: Texas Supreme Court

37 S.W. 598

KILGORE et al. v. NORTHWEST TEXAS BAPTIST EDUCATIONAL SOC.

Supreme Court of Texas.

November 9, 1896.

Error to court of civil appeals of Second supreme judicial district.

Action by the Northwest Texas Baptist Educational Society against S. C. Kilgore and others. From a judgment of the court of civil appeals (37 S. W. 473) affirming a judgment for plaintiff in the district court, defendants prosecute error. Reversed.

McMurray & Gose, Wolfe & Hare, and C. B. Randell, for plaintiffs in error. R. E. Carswell and Bullock & Tankersley, for defendant in error.

BROWN, J.

The defendant in error, a private corporation, instituted this suit against the plaintiffs in error upon a bond, given by S. C. Kilgore as principal and the others as sureties, to secure the fulfillment of a contract made on the part of Kilgore with the defendant in error to construct a three-story stone building. Defendant in error recovered a judgment against the plaintiffs in error for the sum of $400. The petition averred, in substance, the making of the contract for the construction of the building in question according to plans and specifications drawn by W. A. Cann Architectural Company, and the execution by all of the defendants of the bond on which suit was filed. The petition alleged that Kilgore was to begin the work March 1, 1892, and complete it on or before September 1, 1892. The price to be paid was $23,355, in monthly installments as the work progressed, on vouchers issued by the architect, based on estimates made by him, reserving 85 per cent. for the work actually done. The petition alleged that about the 1st of May, 1892, Kilgore abandoned the contract and work, although the plaintiff in that suit had complied fully with the obligations and terms of its contract. The defendants answered, denying that Kilgore had abandoned the contract, but alleging that he was at all times ready and willing to complete the building in accordance with his agreement, but that the plaintiff in the said suit, through its officers and duly-authorized agents, unlawfully and fraudulently ousted him from the contract, and without his consent took charge of the building; that the building committee appointed by the appellee, together with the architect, willfully refused to furnish estimates for the work done and material on hand, and failed to pay the estimates in accordance with the contract; that the committee caused the superintending architect to condemn large quantities of suitable and costly material supplied by the contractor for the purpose of erecting the building, and procured from the architect estimates which were grossly less than 85 per cent. of the work actually done; that if the builder had been permitted to complete the building he would have realized as profits the sum of $4,000. The defendant Kilgore pleaded in reconvention for his damages. The court of civil appeals affirmed the judgment of the district court (37 S. W. 473), from which judgment this writ of error is prosecuted, which is based upon an alleged error of the district court in giving to the jury the following charge: "If the conduct or actions of the defendant Kilgore with reference to the building were such as to evince an intention on his part to abandon the contract, then the plaintiff would have the right to treat the contract as abandoned. On the other hand, plaintiff would not be authorized to treat the contract as abandoned by Kilgore, unless the actions and conduct of Kilgore with reference to the contract were such as evinced an intention to abandon the contract."

The court of civil appeals made no finding of facts, and in order to determine whether or not the charge given, if erroneous, operated to the detriment of the plaintiffs in error, we have examined the statement of facts, from which we conclude that the evidence would have justified the jury in finding that the defendant Kilgore had actually renounced the contract and ceased work upon the building before the defendant in error took charge of it, and that the abandonment was not justified by any failure on the part of the defendant in error to perform its part of the contract. From the evidence the jury might have concluded that the defendant Kilgore had never renounced his contract or ceased work upon the building; that all of his expressions of an intention to abandon the work were based upon the contingency that he should fail to secure funds to enable him to proceed with it; also, that the defendant in error by its committee, with a fraudulent intention of forcing Kilgore to abandon the contract, caused the architect to wrongfully condemn a large quantity of material which he had placed upon the ground to be used in the building, and that the said corporation, through its committee, without any just cause therefor, took charge and control of the said building without consent of Kilgore, and deprived him of the power to execute his contract by the construction of the said building. We have not thought it necessary to state the facts in detail, and have only stated the substance of the conflicting testimony, in order that we may determine what should have been the charge of the court in presenting the issues to the jury. At the trial in the district court the judge charged the jury, in substance, that if they believed from the evidence that Kilgore had abandoned the contract for the erection of the school building, and that such abandonment was not caused by default or wrongful conduct of the plaintiff, and if the plaintiff took possession of the building for the purpose of completing it, they should find for the plaintiff its damages against the defendants. The judge also...