Mood v. Methodist Episcopal Church South, of Cisco

• Decision Date: 22 June 1927
• Docket Number: (No. 963-4789.)
• Parties: MOOD v. METHODIST EPISCOPAL CHURCH SOUTH, OF CISCO, et al.
• Court: Texas Supreme Court

296 S.W. 506

MOOD v. METHODIST EPISCOPAL CHURCH SOUTH, OF CISCO, et al.

(No. 963-4789.)

Commission of Appeals of Texas, Section A.

June 22, 1927.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Elmer Mood against the Methodist Episcopal Church South of Cisco, and others. Judgment for defendants was reversed and remanded by the Court of Civil Appeals (289 S. W. 461), and plaintiff brings error. Judgment of Court of Civil Appeals affirmed in part, and reversed and remanded, with directions in part.

Hawkins, Hawkins & David, of Breckenridge, for plaintiff in error Mood.

Thos. E. Hayden, Jr., of Abilene, for defendant in error L. N. Stuckey.

Butts & Wright and J. D. Barker, all of Cisco, for other defendants in error.

NICKELS, J.

Against the contractor's claim for compensation earned in the construction of a church building at Cisco, used in religious worship, the pastor, presiding elder, trustees, members of the building committee, and members of the church (an unincorporated organization) interposed the bar of the statutes of limitation. Rulings upon that defense, presented by exceptions, give rise to the main question brought to the Supreme Court. In the form brought up, the question relates to subject-matter of the third amended petition as compared with the sixth amended petition. For present purposes, a sufficient statement of the latter petition is contained in the opinion of the honorable Court of Civil Appeals (289 S. W. 461), but a somewhat detailed statement of the relevant parts of the former petition is required.

In paragraph 3 of the petition it is said that the defendants entered into a "written contract" with Page and Mood as "contractors" for "the construction and erection of a church building * * * according to certain plans, drawings, and specifications prepared by T. J. Galbraith, an architect," and whereby the defendants "agreed to pay to these plaintiffs * * * certain amounts or sums of money, all as is hereinafter more fully set forth." It is stated, also, that a copy of the contract is attached and made a part of the petition.

In paragraph 4 it is averred that pursuant to the written contract plaintiffs "duly and seasonably entered upon and diligently proceeded with the performance of their duties, * * * and with the construction and erection of said building, all in full and faithful compliance with all of the terms and provisions of said plans, * * * and continued in so doing down to on or about the 15th day of August, 1919, at which time said written contract was annulled and abrogated by defendants, * * * all as is more fully hereinafter set forth, * * * and that, after said annulment and abrogation, * * * plaintiffs duly and seasonably and diligently proceeded with and performed, finished, and completed the work of furnishing requisite and proper materials in the premises, and of properly constructing and erecting said building, * * * and shortly thereafter said building was accepted by said ecclesiastical organization and by its trustees and its said building committee and by" defendants Garner, Stuckey, and Fisk (composing the building committee), "and ever since then said building has been occupied and used by them and each of them * * * although plaintiffs have not been fully paid for it or for their time and services so expended by them in the construction and erection of said building."

In paragraph 5 it is alleged that:

"* * * Said building was not constructed and erected in all respects in accordance with said plans and specifications, and that, as a consequence, and by reason of certain changes and alterations in said plans, specifications, and materials, all of which were duly ordered and directed and made by said building committee, and by its members, and by said defendants Garner, Fish, and Stuckey, personally and individually, and were accepted and approved and ratified by them and by said architect, the total cost of said building amounted to and was greatly in excess of said original contract price, and amounted to and was $67,093.64."

In paragraph 5 it is alleged also that:

"By the terms of said written contract * * * it was stipulated and agreed by and between said parties hereto, and by defendants Garner, Fisk, and Stuckey, individually, jointly, and severally, in substance, that the amount to be paid thereunder to said contractors (plaintiffs herein) should be equal to the cost of said building, plus 10 per cent. of the amount of such cost, not exceeding in the aggregate Forty-Seven Thousand One Hundred Dollars" payable as follows: "(a) The full amount of all materials and labor bills as soon as same became due and when certified by the Architect. (b) The final payment (or residue) to be made within ten days after completion of the work included in said written contract."

In paragraph 6 it is said that the excess in cost "above the maximum stipulated in said written contract * * * resulted from * * * numerous changes and additions in said plans and specifications and in the materials used, but that all of said changes and additions were ordered by said building committee and by defendants Garner, Fisk and Stuckey, and by said architect, * * * and that, but for such directions and requirements" (i. e., of changes), "said building would have been constructed and erected by said contractors in full and explicit compliance with the terms and provisions of said written contract and in all respects according to * * * said original plans, drawings, and specifications, and all at a total cost to said contractors of not more than forty-two thousand dollars, exclusive of plaintiffs' said 10 per centum commissions thereon."

Paragraph 7 is made up of averments that "* * * all of the work aforesaid which was done in the course of the construction and erection of said building, after said annulment and abrogation of said written contract, was done, and all material therefor which was furnished by plaintiffs after said annulment and abrogation of said written contract was furnished, under and pursuant to and by virtue of and in reliance upon certain verbal agreements between plaintiff's and said building committee and said defendants Garner, Fisk and Stuckey, and in reliance upon certain oral orders and instructions which were given to plaintiffs" by them, "and that all of the aforesaid work done by plaintiffs, * * * whether done prior or subsequent to said annulment and abrogation of said written contract, was approved, accepted, and ratified by said architect and by said building committee and by said defendants Garner, Fisk, and Stuckey, * * * and that all materials so furnished at any time by plaintiffs likewise were accepted, ratified, and approved by said architect and by said building committee and by said defendants Garner, Fisk, and Stuckey."

In paragraph 8 it is charged that great delay and great increase in labor costs were produced "because of the above-mentioned changes and alterations," etc.

In paragraphs 9 and 10 it is charged:

"(a) Shortly after plaintiffs "began active building operations under said written contract, and on or about said 15th day of August, 1919, the defendants "repudiated and abandoned and annulled and abrogated said written contract...