Mills v. Paul

• Decision Date: 13 March 1895
• Citation: 30 S.W. 558
• Parties: MILLS et al. v. PAUL et al.
• Court: Texas Court of Appeals

30 S.W. 558

MILLS et al. v. PAUL et al.

Court of Civil Appeals of Texas.

March 13, 1895.

Appeal from district court, El Paso county; A. G. Wilcox, Special Judge.

Several actions by George Paul and others against Anson Mills and others consolidated. From a judgment for plaintiffs, defendants appeal. Modified. Rehearing denied.

For former opinions, see 23 S. W. 189, 395.

M. W. Stanton, W. W. Turney, T. A. Falvay, and Waters Davis, for appellants. Millard Patterson, Davis, Beall & Kemp, and W. B. Brack, for appellees.

JAMES, C. J.

The several suits brought here in this record by virtue of an order of consolidation were filed at the end of the year 1889. On March 23, 1890, the appellants (Mills and Crosby and wife) filed an application to consolidate the various causes, all of which grew out of a building contract made by them with George Paul for improvements on their hotel building in El Paso, which was granted on June 23, 1890. On February 15, 1891, appellants filed a motion to change the venue of said consolidated cause, on the ground of prejudice against them in El Paso county; and on February 20, 1891, they filed a supplemental motion, alleging that it was not necessary to try the main case of Paul v. Mills with the other causes, as in that case no foreclosure of lien was asked, and that its severance from the other causes would not interfere with their proper trial, and asking that said cause be severed, and its venue changed, on account of said prejudice. These motions were overruled on February 15, 1892, when the case was called for trial. The motions were opposed, on the ground, among others, that all the defendants in the consolidated cause did not join in the application, and that the application for change of venue was not made within a reasonable time. The reasons given by the judge for refusing the first motion were that the parties making the motion were only part of the defendants in said cause and the causes consolidated therewith, that an application for change of venue must be made by all parties plaintiff or by all parties defendant, the appellants being the same defendants that made the motion to consolidate; and, for refusing the second application, the reasons given were that the same parties that were asking the severance had had the cases consolidated, and that it was necessary to try all of the causes together.

In all of the causes except Paul v. Mills, appellants were codefendants with the contractor Paul, they being suits to recover a debt from Paul, and to establish liens on appellants' property, and appellants and Paul jointly interested in defeating these claims. It appears to be the general rule that one of several joint claimants cannot change the venue, the others objecting thereto, as was done here. In Indiana, under a statute similar to ours, such construction is placed on it. Peters v. Banta (Ind. Sup.) 22 N. E. 95. See, also, Zeller v. Martin (Wis.) 54 N. W. 331. Had it been made to appear that there was in fact no issue between the other defendants and Paul, or in some manner that appellants were the real defendants, the objection would not have been good. We, therefore, think there was no error in overruling the motion that applied to the consolidated cause, for this and for the reason next given.

We are of opinion that we should not hold that the supplemental motion was improperly overruled. The object of the statute for change of venue is obviously to entitle a party to the change where the cause exists at the time of trial. It certainly could not have been intended to authorize the change of venue where the application fails to show the existence of the grounds at the time the motion is presented. Both the motions were filed, and the supporting affidavits of prejudice in the county were made, a year before they were called to the attention of the court, and the affidavits, of course, refer to the existence of prejudice a year previous. It would be presuming too much to say that it followed that the prejudice continued to exist at the time action was taken on the motion. It would seem that the applicant should be required to show that it existed at the time the court is asked to act upon the application, or so approximate thereto as to practically refer to that time, to be in a position to insist on the change. Without considering other grounds of objection to the motion, we conclude that the court committed no error when it overruled the motion. We think the several exceptions to the petition were correctly overruled.

The twenty-third assignment of error is that the court erred in not striking out and withdrawing from the jury the testimony of certain witnesses tending to show extra work on the mansard roof contract, on the ground that the pleadings did not assert a claim for extras except in reference to the first contract for the addition. Appellants asked a charge to the effect that plaintiffs pleadings did not authorize a recovery for extras under the mansard roof contract. We find, on examination, that plaintiff did not allege extras, except as to the contract for the addition, and we think that the charge should have been given, as there was evidence of extra work done on the mansard roof. Paul v. Perez, 7 Tex. 338; City of Laredo v. Russell, 56 Tex. 403.

There is no merit in the twenty-fourth assignment, and, in view of defendants' pleading, there is none in the twenty-fifth assignment.

The twenty-sixth and twenty-seventh assignments refer to the provision in each of the two contracts for liquidated damages in the sum of $25 per day for delay in completing them at the proper time respectively. The jury were charged that the same were contracts for a penalty, and that, defendants "having no pleading that would admit proof as to any damage they may have sustained by the delay in completing said building at the time fixed in said contracts, you are charged to find against defendants on their claim for $25 per day for each day said building may have been delayed in the completion." One of the reasons stated by the court for this charge is not sustained by the record. The answer set up a claim for failure to complete the work in due time at the rate of $25 per day for 90 days in respect to the addition, and for 36 days in respect to the mansard roof improvement, claiming the same to be liquidated damages. The question of whether the provision for damages of $25 per day for each day's delay in completing the contracts, respectively, is to be treated as liquidated damages or penalty, must depend in this case on the testimony, for there is nothing on the face of the contracts which would militate against the same being liquidated damages as stated. The rule is that, when the damages that may be suffered by a breach of a contract are of uncertain nature or amount, the parties may designate the damages to be paid for the breach, provided the same are not obviously unconscionable, or when, in connection with the evidence on the subject, they are not unreasonably out of proportion to the actual damages, and therefore it may be reasonably presumed that the sum was arrived at upon a fair estimation by the parties of the compensation to be paid for the prospective loss. Collier v. Betterton (a recent opinion of the supreme court, not yet officially reported) 29 S. W. 467, and cases cited. Such provisions for liquidated damages are usual in building contracts, and on the face of the contracts in this record the provision would be enforced as one for liquidated damages. The parties have so provided. It would devolve upon the plaintiff to establish by evidence a condition of things which would cause it to be regarded as a penalty. Looking to the evidence on this subject, we find it to be meager, and not such as would make the provisions a penalty, in accordance with the foregoing rule. It appears that defendants offered to show that they had an agreement with their tenant, Ecker, to abate the rents for the hotel property while work was unfinished under these contracts, and that the contractor Paul, at the time the contracts were made with him, knew of the existence of said agreement with Ecker, and that defendants had leased the building, to go into effect on completion, this being offered for the purpose of showing that the stipulations for $25 per day were intended as liquidated damages, and not as penalty. In connection with this, we may add that it was proved that Ecker, on completion of the building, paid a monthly rental of $1,100, which we may assume was what he had agreed to pay upon completion of the building. It seems to us, if this state of facts existed, there was no uncertainty in the prospective damages that defendants would suffer if the completion of the building was delayed. The above facts would establish that defendants could not have expected or demanded more than the sum they had bound themselves to receive as rents, and which they had thus settled and liquidated by a contract. This, it seems, would constitute the provision a penalty. If such were the circumstances in existence at the time of entering into the contracts sued on, and defendants had contracted to give Ecker the building complete by the date at which Paul should have finished them, defendants would not only have lost the rental, but may have been liable to Ecker for damages; and this, it seems, would make defendants' damages uncertain, and authorize a stipulation for liquidated damages. We do not feel justified in pursuing this discussion further, as the facts upon which the proper construction of the provision may depend are evidently not fully developed. We are clearly of opinion, however, that the court erred in holding it to be a penalty, so far as the record goes.

The thirty-ninth assignment complains that the court refused to give a charge to...