Nunn v. Brillhart

• Decision Date: 06 April 1921
• Docket Number: (No. 1794.)
• Citation: Nunn v. Brillhart, 230 S.W. 862 (Tex. App. 1921)
• Parties: NUNN v. BRILLHART.
• Court: Texas Court of Appeals

Page 862

230 S.W. 862

NUNN v. BRILLHART.

(No. 1794.)

Court of Civil Appeals of Texas. Amarillo.

April 6, 1921.

Rehearing Denied May 18, 1921.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by Jacob H. Brillhart against Simpson & Co. and W. G. Nunn. From judgment for plaintiff, defendant Nunn appeals. Reversed and remanded.

McCutcheon & Church, of Dallas, for appellant.

Holloway & Holloway, of Dallas, for appellee.

BOYCE, J.

Jacob H. Brillhart, as owner of a building in Dallas, Tex., made a contract with Simpson & Co., by which Simpson & Co. agreed, for the consideration of $840, to install a hot-water heating system in Brillhart's building. The contract contained this provision:

"Contractor guarantees said system to raise temperature to 70° Fahrenheit, in each room of first and second floors of said building, in zero weather, and to supply two gallons of water per minute for periods necessary in household use for a period of one year. Failing to do this, contractor shall remove all portions and parts of system without cost to owner and repay to owner all money paid on account of this contract."

The contractors gave a bond, on which appellant, W. G. Nunn, was surety, which was conditioned that Simpson & Co. should "well and truly perform and fulfill all the obligations imposed upon them" by said contract. The heating system was installed in the summer of 1916, and Brillhart paid Simpson & Co. in full for the work. During the following winter the heating system did not fulfill the terms of the said guaranty, either as to the heating of the rooms or the delivery of the hot water for domestic use. Simpson & Co. were notified of such fact and repeatedly requested to remedy the defects, and finally requested to remove the system from the building, as provided by the contract. This they failed to do. Brillhart thereafter had the system reconstructed, and in doing so used portions of the original plant. He alleged that the reasonable value of the work and material used in thus fixing up the heating system so as to conform to the contract, was the sum of $690, and brought this suit against Simpson & Co. and the surety, W. G. Nunn, for the recovery of such amount. On trial the plaintiff recovered judgment for said sum of $690 against Simpson Co., and the surety, Nunn, and the said Nunn has appealed from said judgment.

A considerable part of the briefs of the parties is devoted to the discussion, pro and con, of a proposition made by appellant, to the effect that the provision in the warranty for the removal of the heating system by the contractor was a limitation of liability under the warranty. We think this unimportant, since Simpson & Co. refused to remove the system under this provision of the contract. Upon breach of the warranty it became the duty of the contractors, if they saw fit to avail themselves of this method of satisfying the breach of the warranty, to take the plant out and pay the plaintiff what they had received on the contract. Failing to do this, they became liable for breach of the warranty just as if the contract did not contain this clause. Warder v. Robertson, 75 Iowa, 585, 39 N. W. 905; 24 R. C. L. p. 253, § 531, note 9; notes to 50 L. R. A. (N. S.) 773, 778; notes to 32 L. R. A. (N. S.) 214.

What, then, is the measure of plaintiff's damage? The appellant insists that it is the difference between the value of the heating plant as installed and its value had it been installed so as to meet the conditions of the contract. This is the rule to be applied in many cases, but it is not the invariable rule. In many cases of contracts for building, repairs or installation of machinery, etc., where the work of the contractor does not come up to the specifications of the contract, the damage allowed is such an amount as will cover the reasonable cost of remedying the defects, so as to fulfill the terms of the contract. Without going into a detailed discussion of the authorities on this question, or attempting to state the limitations under which the rule is to be applied we think there was no error in applying it in this case. American Surety Co. v. Lyons, 44 Tex. Civ. App. 150, 97 S. W. 1080. Writ of error was denied in this case, and it was cited with approval by the Supreme Court in the cases of Graves v. Allert, 104 Tex. 614, 142 S. W. 869, 39 L. R. A. (N. S.) 591; Graves v. Hillyer, 48 S. W. 889; American Surety Co. v. Gonzales Water Co., 211 S. W. 251; Waco Cement Stone Co. v. Smith, 162 S. W. 1159; Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601, 32 L. Ed. 1035; Marsh v. McPherson, 105 U. S. 709, 26 L. Ed. 1139; Benjamin v. Hillard, 64 U. S. (23 How.) 149, 16 L. Ed. 518; notes to 39 L. R. A. (N. S.) 592; 9 C. J. p. 811.

The plaintiff was entitled to receive what he had contracted for — an installed heating plant, sufficient...