McKnight v. Lange Mfg. Co.

• Decision Date: 04 April 1913
• Citation: 155 S.W. 977
• Parties: McKNIGHT v. LANGE MFG. CO. et al.
• Court: Texas Court of Appeals

155 S.W. 977

McKNIGHT v. LANGE MFG. CO. et al.

Court of Civil Appeals of Texas. Galveston.

April 4, 1913.

Appeal from District Court, Washington County; Ed. R. Sinks, Judge.

Action by J. F. McKnight against the Lange Manufacturing Company and others. Judgment for plaintiff for a part only of the relief demanded, and he appeals. Affirmed.

W. W. Searcy, of Brenham, for appellant. Mathis, Buchanan & Rasberry, of Brenham, for appellees.

REESE, J.

J. F. McKnight, having a contract for the erection of a city hall building in the city of Taylor, entered into a contract with Wm. Lange, who did business under the name of the Lange Manufacturing Company, for furnishing the material and doing certain of the work on said building. At the same time the said manufacturing company, with Robert Strickert and J. S. Williams as sureties, executed a bond to McKnight in the penal sum of $600 for the faithful performance of the work by Lange Manufacturing Company. Alleging a breach of said contract and bond, by which he was damaged in the sum of $653.90, McKnight instituted this action in the district court against the manufacturing company and Strickert and Williams, in which he seeks to recover the entire amount of the principal and $600, the amount of the bond, of the sureties. The case was tried with a jury. The court instructed the jury to return a verdict for the sureties (on the ground that they had been discharged by a material change in the contract by agreement between the plaintiff McKnight and the Lange Manufacturing Company without the consent of the sureties), and submitted the issue of liability of the manufacturing company. The jury returned a verdict for the sureties, as directed, and against the manufacturing company for $300. The plaintiff made a motion for a new trial, which was overruled, and prosecutes this appeal, wherein he complains of the judgment in favor of Strickert and Williams, the sureties. The only question presented by the appeal is the correctness of the peremptory instruction to the jury to return a verdict in favor of Strickert and Williams, the sureties, which depends upon the proposition that, under the undisputed evidence, there had been such a material change in the contract, by agreement between appellant and the Lange Manufacturing Company, without the consent of the sureties, as to discharge and release them from liability on the bond.

By the terms of the contract between appellant and Lange, appellant was to pay $1,800 for the work, payments to be made on semimonthly estimates; 85 per cent. of such estimates to be paid then and 15 per cent. to be paid on the completion of the work and compliance with the terms of the contract. The bond was in the usual form, in the penal sum of $600, conditioned that the Lange Manufacturing Company should comply with the terms of the contract. No question is made on this appeal by appellees that there was a failure on the part of the Lange Company to comply with their contract. The undisputed evidence shows that, within two weeks of the time Lange began the work, he came to appellant and told him he was not financially able to carry on the work unless appellant would agree to pay off his labor and pay for material as it arrived. This was the substance of the matter. McKnight testified: "At the beginning of the work Mr. Lange told me that he was wholly unable to proceed financially with the work; that, instead of paying him his part of the terms of the contract (that is, 85 per cent. semimonthly for the work as it advanced and was carried on), I had to meet the `order notify' shipments, pay freight and other expenses, and pay the pay roll weekly, and I agreed with him that I would do that. That was after work had been commenced; after the contract and bond had been entered into. I met these drafts or `notify order' goods." The witness made a statement by items of the money so paid by him, from which it appeared that he paid to Lange in this way more than the entire contract price of the work. The statement referred to shows a total of $2,453.90, but some of this was for deductions which he had to make on account of faulty materials furnished by Lange and faulty work done, and some of it for money paid for work which he had to have done on account of Lange's default; but, deducting all of this, the statement shows that appellant largely overpaid Lange the contract price under the agreement aforesaid. In his amended petition it is alleged that the amount so paid out for freight, "order notify" goods, labor, etc., was $2,050.96. This was the amount that in fact he was bound to pay as the work progressed under the new agreement. Appellant testified that the payments amounted to more than 100 per cent. of the contract price. The result of this new agreement was that, when the work was completed, there was nothing due of...