Maverick v. Maury

• Decision Date: 03 February 1891
• Court: Texas Supreme Court
• Parties: MAVERICK v. MAURY.

15 S.W. 686

MAVERICK v. MAURY.

Supreme Court of Texas.

February 3, 1891.

Appeal from district court, Bexar county.

McLeary & King, for appellant. Shook & Vander Hoeven and Oscar Bergstrom, for appellee.

GAINES, J.

The appellee brought this action against the appellant to recover a balance alleged to be due appellee for labor and materials furnished upon a building belonging to appellant in pursuance of two contracts entered into by the parties. The first contract was for furnishing and putting into the building a steam-heating apparatus, and was in writing. By the terms of the agreement appellant bound himself to pay appellee for the material and work $2,975, provided appellee put in the foundation. If appellant put in the foundation, the price was to be $2,800. The second contract was not reduced to writing, but by its terms it was agreed that the appellee was to put into the building the plumbing and gas-fittings, and to furnish all the materials and labor necessary for the work, and appellant was to pay him the actual cost of such material and labor, together with 15 per cent. upon the amount as a compensation for his undertaking. The appellee claims that there was no limit agreed upon as to the amount, while appellant insisted that the appellee guaranteed that the entire cost should not exceed $2,600. In his answer appellant alleged that appellee had been overpaid, and prayed judgment against him for the alleged excess. The written contract was signed, "Maury & Co." The appellant, who was examined as a witness in his own behalf, testified that he made the contracts for himself alone; that he was at the time doing a business on his own account in the part of the city of San Antonio where appellant's building was situated, under the name of Maury & Co., but that in that business he had no partner; and that he had a partner in a distinct business in another part of the city, but that the latter had no interest in these contracts. He further testified that after the contracts were entered into he took one Bainbridge into partnership, and gave him an interest in them, but that before the work was completed they had dissolved, and that upon the dissolution Bainbridge had relinquished to him all the interest he had acquired in them. Upon the introduction of this testimony the appellant "objected to proceeding further until the proper parties were made, because the testimony of the plaintiff himself showed that Bainbridge had become interested in this contract, and was a member of the firm of Maury & Co., and should be made a party plaintiff in this case, and because the petition did not show that he (Bainbridge) had ever had any interest in the contract sued upon, and that his interest had been transferred to S. P. Maury." The objection was overruled, and the trial was allowed to proceed, and defendant excepted, and now assigns the ruling as error. The ruling was not erroneous. Bainbridge had no interest in the contract when the work was completed, and therefore he was neither a necessary nor a proper party to the suit. Not having been a party to the contracts when made, it was not necessary to allege the fact that he had acquired an interest which he has reassigned to the plaintiff before the suit was brought. Appellee also testified that he sublet the contract for furnishing the material and constructing the steam-heating apparatus, including the foundation, to a firm known as "Branch, Crookes & Co.," and that they completed the job, and held him responsible for the money. The contract with that firm, being in writing, was offered in evidence, and admitted over the objection of the defendant. Its admission is assigned as error. In order to prove his case, it was necessary for the plaintiff to show that he had done that work himself, or had procured it to be done. Having shown that Branch, Crookes & Co. had done the work, it was incumbent upon him to prove that they did it at his instance, and on his account. His contract with them for the work being in writing, it would seem that the writing itself was the best evidence of the fact; but, even if not necessary to make out plaintiff's case, we cannot see what possible injury its admission has done to the defendant.

A bill of particulars of the material put into the building and the labor done upon it under the contract for the plumbing and gas-fittings, together with the price of each item, was annexed to and made a part of plaintiff's petition. The appellant complains of the refusal of the court to give an instruction in regard to this account, which instruction, together with the circumstances under which it was requested, are shown by the following statement from a bill of exceptions taken to the ruling: "Maury testified in answer to the question of defendant's counsel that the account sued upon was made out in the following manner: "We had several plumbers at work upon the defendant's building. Every time any one of them went to work in the building, he put down in a little book the amount and kind of material he himself had put into the building, the length of time he had worked during the day, and the length of time the `helper' had worked with him. When the plumber came back to the shop he would give the book-keeper from his (the plumber's) own little book the kind and amount of material used in the building, and the length of time the plumber and helper had worked, all of which was then transcribed by the book-keeper. This is the only way that I know the books and account are correct. I do not know of my own knowledge that the material all went into the building. I suppose that the plumbers kept correct books themselves." Mr. Cowdry, the book-keeper of the plaintiff, had already testified that the books were made up in the manner above set forth. None of the plumbers' books were offered in evidence, nor was the absence of said books accounted for, nor did any of the plumbers of plaintiff testify as to the correctness of any part of the account. But one of the pass-books, to-wit, Steven's, was produced by defendant's witness Alvord when it was demanded by plaintiff, and offered in evidence, and the defendant objected to the same for other reasons stated, and the court sustained the objection; whereupon, after the plaintiff, S. P. Maury, had testified as above set out, the defendant requested the court for time to write out a motion to strike the said account of plaintiff out of the evidence, and thereupon the court told defendant's counsel that this course was not necessary, but said the same end could be reached, and that the matter could be controlled, by the charge to the jury; and, after the evidence was closed, the defendant asked the following special instruction: "Gentlemen of the jury, you will not consider in evidence the account of the plaintiff testified to by him in this cause, nor will you consider, in making up your verdict, any testimony that may have been given about the correctness of his books by the plaintiff, since it has been...