Nelson v. San Antonio Traction Co.

• Citation: 142 S.W. 146
• Parties: NELSON et al. v. SAN ANTONIO TRACTION CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 13 December 1911
• Court: Texas Court of Appeals

Page 146

142 S.W. 146

NELSON et al. v. SAN ANTONIO TRACTION CO. et al.^†

Court of Civil Appeals of Texas. San Antonio.

December 13, 1911.

Rehearing Denied January 10, 1912.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by the Parker-Washington Company against J. P. Nelson and another, and defendants sought cross-relief against the San Antonio Traction Company. From a judgment against defendants on their cross-bill, they appeal. Affirmed.

Denman, Franklin & McGown, for appellants. Templeton, Brooks, Napier & Ogden, for appellees.

JAMES, C. J.

This suit was brought on May 22, 1905, by the Parker-Washington Company against J. P. Nelson and others to recover the price which Nelson had agreed to pay plaintiff, as his subcontractor, for certain work done for the San Antonio Traction Company under Nelson's contract with it, and to foreclose a mechanic's lien upon the property of said traction company. Other defendants in this petition were the Nelson Paving Company and the San Antonio Traction Company and the Uvalde Asphalt Company. Nelson and the Nelson Paving Company filed a cross-action to recover against the traction company for what was due under Nelson's contract with said company, and to foreclose a mechanic's lien on the latter's property. The traction company defended against said actions, upon the ground that the work done by the Parker-Washington Company was not in accordance with Nelson's contract with it, and claimed that it had paid more for the work done than it was reasonably worth; and it also, on January 3, 1911, filed a cross-action against Nelson and the Nelson Paving Company for breach on his contract with it. The case was determined by the trial court in special findings of the jury, supplemented with findings by the trial judge.

The case comes here narrowed down to issues of law which concern solely the traction company and Nelson. It is therefore unnecessary to state in this opinion more from the voluminous record than is necessary to elucidate those issues.

Nelson, on January 3, 1901, entered into a contract with the San Antonio Traction Company to lay for it the certain asphalt pavements in controversy here, and to maintain and repair the same for a period of 10 years. He assigned this contract to the Nelson Paving Company. On October 26, 1901, he and the Nelson Paving Company, by subcontract, turned the work over to the Parker-Washington Company, and the Parker-Washington Company laid the pavement in controversy, completing the same December 20, 1901.

The traction company had agreed to pay Nelson certain prices, partly as the work progressed, and balance when the work was completed. The bulk of the price was paid during the progress of the work, but when completed the traction company refused to make the final payment.

Nelson and the Nelson Paving Company had agreed to pay the Parker-Washington Company the price named in their contract, and whenever Nelson received payments from the traction company they were turned over to the Parker-Washington Company; but when it came to the final payment he refused to pay the Parker-Washington Company, claiming that the money was not due from him until he was paid by the traction company; and Nelson announced that he refused to be bound by his contract to maintain the pavement, and claims that his contract with the traction company to do so was discharged or terminated by said company's breach of its contract in refusing to make the final payment.

The findings, so far as material to this appeal, were: That the work when completed was in accordance with Nelson's contract; hence no valid reason existed in fact for the traction company's refusal to make the final payment when it was due. That Nelson was entitled to recover from it the sum of $18,516.52; this being the balance of the contract price ($11,819.51), with interest thereon to the date of the decree. There was also a finding that the San Antonio Traction Company was entitled to recover on its cross-action against Nelson and the Nelson Paving Company the sum of $15,714.40 and $3,491.20, interest thereon to date of decree, making $19,205.60, for breach of Nelson's contract to maintain. The above allowance to the traction company resulted in a judgment being rendered in favor of said company against Nelson and the Nelson Paving Company for the difference — $689.08.

The appellants here are J. P. Nelson and the Nelson Paving Company, who assign as error:

"First. That the court erred in not rendering judgment for appellants against the traction company for the sum of $18,516.52, principal and interest, due J. P. Nelson at the date of the decree * * * for the work done by Nelson for the San Antonio Traction Company under his contract of January 3, 1901, through the Parker-Washington Company as subcontractors.

"Second. That the court erred in rendering judgment against J. P. Nelson and the Nelson Paving Company in favor of the San Antonio Traction Company upon its cross-action against them, and in not rendering judgment that the San Antonio Traction Company take nothing by its suit and cross-action against the defendants J. P. Nelson and the Nelson Paving Company, for the reason that J. P. Nelson was discharged from this contract to the work under the contract of January 3, 1901: (1) By the failure of the San Antonio Traction Company to perform its part of the contract by paying for said work at the times and in the manner provided therein; and (2) by limitation — the cause of action of the San Antonio Traction Company against J. P. Nelson for the breach of the contract of January 3, 1901, to guarantee, maintain, and repair the work covered thereby, accrued more than four years prior to the filing of the cross-action herein by the San Antonio Traction Company to recover for said breach, and is barred by the statute of limitation of four years."

Under the first assignment, appellants' proposition is in effect that, the jury having found that the work was done according to the contract, the refusal of the traction company to pay the balance then due, in accordance with the terms of the contract, discharged Nelson's obligation to maintain. The assignment, the proposition, and the brief of this assignment may not with clearness present the point as we have just done, but, if that is not appellants' contention, then we are at a loss to know what it is.

The provision of the contract on this subject reads as follows: "The contractor agrees to guarantee the pavement...