Lytle v. McAlpin

• Decision Date: 26 January 1949
• Docket Number: No. 11912.,11912.
• Citation: 220 S.W.2d 216
• Parties: LYTLE v. McALPIN.
• Court: Texas Court of Appeals

220 S.W.2d 216

LYTLE v. McALPIN.

No. 11912.

Court of Civil Appeals of Texas. San Antonio.

January 26, 1949.

Rehearing Denied March 3, 1949.

Appeal from 117th District Court, Nueces County; A. J. Pope, Jr., Judge.

Action by E. H. McAlpin against J. W. Lytle for material and services rendered. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Palmer & Lemons, of San Antonio, and Alfred M. Scott, of Austin, for appellant.

Kleberg, Eckhardt, Mobley, Lockett & Weil, of Corpus Christi, for appellee.

NORVELL, Justice.

J. W. Lytle, defendant below, has appealed from a judgment in the sum of $524.52 rendered against him and in favor of E. A. McAlpin. McAlpin did some concrete and brick work on appellant's house and contended that Lytle was liable to pay him for such material and services.

In December of 1944, Lytle and E. M. Carey entered into an oral agreement under which certain additions and improvements were made to a residence owned by Lytle. Carey engaged McAlpin to do a part of this work. Upon the trial McAlpin contended that, under the agreement between Lytle and Carey, Carey became Lytle's agent and was authorized to obligate Lytle for the payment of the services and materials furnished by him. Lytle, on the other hand, denied that Carey was his agent, but contended that Carey was an independent contractor. For a discussion of agreements relating to independent contractors as opposed to agents, see the recent case of Williams v. Texas Employers' Ins. Ass'n, 218 S.W.2d 482 decided by this Court on December 1, 1948.

The trial judge's findings and conclusions were favorable to McAlpin. The trial judge found that:

"Under the terms of the contract Carey was agent for Lytle to engage and hire sub-contractors and to furnish labor and material necessary for and incident to said construction.

"That E. A. McAlpin was one of the sub-contractors so engaged by said Carey within the authority and scope of Carey's agency to furnish labor and material in the execution of construction work contracted for.

"That E. A. McAlpin furnished work, labor and materials to Lytle as a subcontractor on this construction."

The trial judge concluded as a matter of law that:

"Carey, by virtue of his contract with Lytle was the agent of Lytle and as such was authorized to and did bind Lytle to pay to McAlpin the price contracted Carey on Lytle's behalf for the labor and materials furnished to Lytle by McAlpin and he, Lytle, is therefore, bound and obligated to the said McAlpin in the sum of Five Hundred Twenty-Four and 52/100 ($524.52) Dollars."

Appellant's points, inter alia, present the contention that the evidence is insufficient to support the trial judge's findings.

Appellee does not rely upon a mechanic's or materialman's lien, but upon the alleged agency between Lytle and Carey. McAlpin was not present when the agreement was made. Lytle contended that he had an agreement with Carey to do a certain piece of work at a certain price. We must, however, accept Carey's version of the agreement in view of the trial judge's findings. According to Carey, who was appellee's witness, he had been doing some work for the Pete Murrays, who were neighbors of the Lytles. Carey testified that Mrs. Lytle first approached him with reference to building a sun porch. Later a garage, closet and servant's quarters were included in the conversations. Carey said he would do the work on the same arrangement he had with Murray.

Carey, on direct examination, testified as follows:

"Q. Well, was it your agreement with them to do either the total of these jobs you have testified to for a definite figure or on a cost plus basis? A. Cost plus, not a definite figure.

"Q. Was that definitely agreed upon? A. I don't know as it was agreed on at that time but I would say they knew that was how I was doing it. I told them to begin with I would do it just the same as I was doing Pete Murray's."

On cross-examination Carey testified:

"Q. Can you tell us substantially what was said? A. Well, he (Lytle) said what he wanted me to do and what they had talked about doing, and that was building that room and he told me thereafter to summarize or get it approximately what it would cost him.

"Q. Did you tell him what it would cost? A. No, I didn't. I told him approximately what it would cost. * * *

"Q. Did you prepare an estimate? A. Yes, sir, an approximate estimate.

"Q. Did you tell him you would do the complete job for any sum? A. No, I didn't, no, sir.

"Q. What did you tell him about that servants quarters? A. I told him do it same as the others, cost plus. We never made no contract.

"Q. What did you say to Mr. Murray — to Captain Lytle? A. I told him I would do it like I had done Pete Murray's that was cost plus.

"Q. Did you ever mention cost plus to him? A. I don't know whether exactly I did or not.

"Q. You don't know whether you did? A. I couldn't say whether I did or not.

"Q. After you accepted this job who was in charge of it? A. I was.

"Q. You were in complete charge of it? A. Yes, sir.

"Q. Did Captain Lytle ever tell you when to come to work? A. No, sir.

"Q. Ever tell you when to leave? A. No, sir.

"Q. Did he ever tell you when to go to lunch? A. Well, he didn't ever have to do that.

"Q. I mean you were in complete charge of that work? A. I was.

"Q. And you were supposed to deliver a complete job? A. I was under his orders and he could turn me off any time he wanted to because I was working for him.

"Q. He didn't tell you when to come to work? A. He didn't have to tell me because if I didn't go to work he wouldn't have paid me. * * *

"Q. All right, you had charge of the hiring and firing of men that worked there? A. I did. They worked for me.

"Q. Captain Lytle had nothing whatsoever to do with it? A. I was the boss. * * *

"Q. When were you supposed to complete the work out there? A. There was nothing said about that.

"Q. And you didn't say anything about cost plus to Captain Lytle, did you? A. Well, in —

"Q. Just answer my question. A. I don't know whether I did or not.

"Q. Well, do you swear that you did? A. Huh?

"Q. Do you swear that you did? A. I don't."

From the above statement, it will be seen that the evidence relied upon to support the theory that Lytle and Carey entered into a "cost plus" contract is very meager, and the testimony is clearly insufficient to establish that Carey was Lytle's agent. Appellee, however, contends that "a contractor under a `cost plus' contract is the agent of the owner." It appears that the form of "cost plus contract" prepared by the American Institute of Architects does, with reference to certain matters, provide for this relationship. Smith v....