Massachusetts Bonding & Ins. Co. v. Steele

• Decision Date: 08 October 1925
• Docket Number: (No. 261.)
• Citation: 276 S.W. 470
• Parties: MASSACHUSETTS BONDING & INS. CO. v. STEELE.
• Court: Texas Court of Appeals

276 S.W. 470

MASSACHUSETTS BONDING & INS. CO. v. STEELE.

(No. 261.)

Court of Civil Appeals of Texas. Waco.

October 8, 1925.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Action by L. L. Steele against the Massachusetts Bonding & Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, and C. S. Bradley, of Groesbeck, for appellant.

Keys, Mason & Machen, of Mexia, for appellee.

BARCUS, J.

On June 5, 1922, Sloan & Spoonts, as building contractors, entered into a written agreement with the trustees of the independent school district of Mexia for the construction of a new school building, and executed a statutory bond as required by article 6394f of the Revised Statutes (Vernon's Sayles' Ann. Civ. St. 1914), with appellant as surety, in the sum of $50,000. Said bond provided, among other things, that the contractors "would promptly pay all persons, firms, and corporations supplying them with labor and material in the prosecution of the work provided for in the contract." Appellee brought this suit against appellant as surety on said bond, and for cause of action, as to his contract and work performed thereunder, alleged:

"Plaintiff shows to the court that he was engaged by the firm of Sloan & Spoonts to take charge of said work while the building was under construction, and as a consideration the firm of Sloan & Spoonts agreed to pay to this plaintiff the sum of $2,500 out of the money to be paid them upon the completion and acceptance of the work. * * * Plaintiff alleges that he did truly perform labor under the terms of his agreement with Sloan & Spoonts, and that the terms of the bond entitled him to look to this defendant for any unpaid part of the money due him arising out of the performance of this labor, which amounts to $2,500."

Plaintiff excepted to appellee's petition —

"because it appears that appellee was suing for a lump sum of $2,500 for labor performed under the terms of his agreement with Sloan & Spoonts, and appellee nowhere alleges * * * the time or times at which same was performed, the rate per diem, or the length of time he was engaged in the performance thereof."

The court overruled said exception, and appellant assigns error. We sustain this assignment.

The cause was tried to a jury on special issues, and the court submitted the following issue, which was answered "Yes":

"Did the firm of Sloan & Spoonts, contractors, contract and agree to pay L. L. Steele $2,500 for his services for the term of four or five months in superintending and overlooking the construction of the Mexia high school building?"

Appellant contends said issue was not supported by the pleadings. We sustain this contention. The testimony shows that the work started on the construction of the building about July 1, 1922, and that appellee began his services on October 12, 1922, and quit February 5, 1923, and that the building was not completed until August, 1923. It was further shown that on February 5, 1923, the contractors, Sloan & Spoonts, being unable to complete the building, did, with the consent of the school trustees, assign their contract to the...