McKenzie v. Barrett

• Decision Date: 23 June 1906
• Citation: 98 S.W. 229
• Parties: McKENZIE et al. v. BARRETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

98 S.W. 229

McKENZIE et al. v. BARRETT.^*

Court of Civil Appeals of Texas.

June 23, 1906.

On Rehearing, December 6, 1906.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by C. E. Barrett against P. A. McKenzie and the Fidelity & Deposit Company of Maryland. From a judgment for plaintiff, defendants appeal. Affirmed.

W. H. Ward and E. P. Phelps, for appellant. McKinzie, Hogg, Watkins & Jones, for appellant Bond Co. Andrews, Ball & Streetman, for appellee.

PLEASANTS, J.

This is a suit by appellee against P. A. McKenzie, as principal, and the Fidelity & Deposit Company of Maryland, as surety, upon a bond executed by defendants to secure the faithful performance by McKenzie of a contract made by him with appellee for the construction of a dwelling house in the city of Houston. The petition alleges the execution of the contract and bond, and that McKenzie abandoned his contract and plaintiff was compelled to complete the same at a cost and expense of $923.92 over and above the amount agreed to be paid by him in said contract. McKenzie answered by general and special exceptions and general denial, and specially pleaded that he had voluntarily abandoned the contract. He also pleaded that the plans and specifications had been materially changed without his knowledge and consent after the execution of the contract, and that plaintiff and his architect had conspired to defraud him and refused to allow him to complete the building in accordance with his contract, but demanded of him other and different work from that required by the contract, and for that reason he was compelled to abandon the work. He further pleaded that the certificates issued by the architect for the amounts expended by plaintiff in completing the building were fraudulently made for a much larger amount than was required to complete the work. The defendant surety company adopted the answer of its codefendant, and further pleaded breaches by plaintiff of the conditions of the bond upon which the suit was brought. The cause was tried by a jury, and upon a verdict in favor of plaintiff judgment was rendered in his favor against both defendants for the sum of $902, with judgment over in favor of the surety company against the defendant McKenzie for a like amount.

The contract sued on was made January 7, 1903, and under its terms the defendant McKenzie agreed and undertook to construct the buildings therein described according to the plans and specifications attached to said contract, and under the supervision and to the satisfaction of plaintiff's architect, F. S. Glover, for the sum of $3,750. This contract provides that payments may be made to the contractor in installments, "upon certificates issued once every two weeks to the amount of (80%) eighty per cent. of the labor and materials in the buildings and the remaining (20%) twenty per cent. to be retained until the final completion and acceptance of the buildings by the architect, F. S. Glover." In event the contractor should fail to comply with his contract, the owner was authorized to take charge of the work and complete same according to the contract, and, if the unpaid balance due the contractor at that time should exceed the expense incurred by the owner in completing the work, he shall pay such excess to the contractor, but, if the cost of completing the work should exceed the balance due under the contract, the contractor was bound to pay such excess to the owner. "The expense incurred by the owner as herein provided either for furnishing materials or for finishing the work, and any damage incurred through such default shall be audited and certified by the architect whose certificate thereof shall be conclusive upon the parties." Article 10 of the contract is as follows: "It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials." The bond executed by the security company contains the following provisions: "Whereas said principal has entered into a certain written contract, bearing date the 8th day of January, A. D. 1903, with said owner, to furnish all of the labor, materials and other things requisite, and to do and perform all things contemplated by said contract, which contract, together with all its terms, covenants, conditions, specifications and stipulations, is incorporated herein and made to form a part hereof as fully and amply, to all intents and purposes, as if said contract was recited at length herein. * * * This bond is executed by the surety upon the following express conditions, which shall be conditions precedent to the right of the owner to recover hereunder: The owner shall keep, do and perform each and every, all and singular, the matters and things set forth and specified in said contract to be by the owner kept, done and performed and exclusively at the times and in the manner in said contract specified. * * * The said owner shall retain the last payment and reserve due said principal until the complete performance by said principal of all the terms, covenants and conditions of the contract on said principal's part to be performed, and until the expiration of the time within which liens or notices of liens may be filed, by reason of any thing done in or towards the performance of said contract, and until the cancellation and discharge of such liens, if any; and said surety shall be notified, in writing, before the last payment shall be made or said reserve paid." Some time in April, 1903, McKenzie quit work under the contract, and plaintiff took charge of the work and completed the building. The testimony is conflicting upon all of the issues raised by the pleadings, but there is sufficient evidence to sustain the findings of the jury that McKenzie defaulted in his contract, and that it cost plaintiff $902 to complete the work over and above the balance due under the contract at the time McKenzie abandoned it, and that said amount was audited and approved by the architect as provided in the contract, and was the necessary and reasonable cost of completing the work in accordance with the contract.

The appellants have filed separate assignments of error and separate briefs. We shall not discuss the various assignments in detail, and unless otherwise stated the questions considered and determined in this opinion are raised by both appellants.

The verdict of the jury is as follows: "We, the jury in this case, find for the plaintiff to the amount asked, namely, $902.92, against the defendant bond company, and judgment against the defendant McKenzie in favor of the bond company for like amount, together with $200.00 attorney's fees." Appellants contend that this verdict did not authorize a judgment in favor of plaintiff against McKenzie, and the surety company urges that, the judgment against its principal not being authorized by the verdict, no valid judgment could be rendered thereon against the surety. We think the verdict necessarily includes a finding by the jury in favor of plaintiff against McKenzie, and the trial court did not err in so construing it and rendering judgment accordingly. Under the pleadings, evidence, and charge of the court, no verdict could have been found against the surety company unless the jury found in favor of plaintiff against McKenzie. That the jury intended to find against McKenzie for the amount due plaintiff is evidenced by its finding such amount against him in favor of the surety company. Viewed in the light reflected upon it by the entire record, we think the finding of the jury against McKenzie...