Patterson v. Magill, 10145

• Citation: 259 S.W.2d 954
• Decision Date: 24 June 1953
• Docket Number: No. 10145,10145
• Parties: PATTERSON v. MAGILL.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 954

259 S.W.2d 954

PATTERSON v. MAGILL.

No. 10145.

Court of Civil Appeals of Texas, Austin.

June 24, 1953.

Rehearing Denied July 31, 1953.

Clyde Vinson, San Angelo, for appellant.

Runge, Hardeman & Steib, by Carl Runge, Jr., San Angelo, for appellee.

GRAY, Justice.

Appellant sued appellee to recover the contract price for painting and maintaining advertising signs located on highways leading to and from the City of San Angelo. The contract was in writing and provided that appellant would paint and maintain the signs at four locations for a period of thirty-six months beginning January 1, 1949, and ending January 1, 1952, for the sum of $66 per month payable 'the first of each month.'

During the term of the contract the locations of two of the highways were changed and the signs on those highways were discontinued, but no complaint of that result is here made. The questions here presented relate to the two remaining signs.

All payments were made by appellee until January 1, 1951, since which time he has refused to make further payments for the two remaining signs.

As to the payment of monthly installments the contract provided:

'Our failure to make any monthly payment as herein provided after request by you, shall, at your option, be deemed a complete breach by us of this contract, or at your option upon any such failure the full amount of this remaining monthly installments hereby agreed to be paid by us to you shall thereupon immediately become due and payable, and in the event of our failure to make payment thereof upon demand, you are authorized but not obligated to remove our advertising from said space or spaces, or any of them, and/or to relet said spaces or any of them for out account for the whole or any part of the term of this contract, to such person or persons and upon such terms and conditions as you may determine, and/or collect and receive the income from any such reletting or relettings, and to apply any and all moneys so collected and received by you on account of any amounts which may then be due to you from us under this contract.'

There is a dispute in the pleadings and in the testimony as to the terms of the contract. The contract as first written and signed by the parties provided that the four signs should be maintained 'with glass-globeads on name and location only.' The contract alleged, and testified to, by appellant contained a note:

'Glass-Glo Beads were tested and changed to Scotchlite. Material is to be furnished by R. L. Magill on all replacements of same. No labor charge for application. This is agreed on at signing of Contract.'

Appellee's answer contained a general denial and allegations to the effect that the only contract that he entered into with appellant was that appellant agreed to paint and maintain the signs with materials provided at appellant's own expense, but that appellant breached the contract because he did not maintain the signs or provide the paint at his expense, but permitted the signs to weather and deteriorate so that they were of no benefit to appellee.

Appellee was the operator of 'Motel Magill' in the City of San Angelo, and the signs in question were for the purpose of advertising the motel and giving its location.

Appellee denied executing the contract sued on by appellant, however the evidence shows that the name and location of appellee's motel on the signs were done in scotchlite, a reflectory material.

Appellant testified that after January 1, 1951, appellee complained that the two signs needed new scotchlite and paint; that the signs were not repainted because appellee refused to furnish scotchlite for refinishing the signs, and that the signs were maintained until July 1, 1951. Appellee testified that about Christmas 1950, there were payments due under the contract which he paid on the promise of appellant that he would service the signs immediately after Christmas, but he did not mention scotchlite or who was to furnish it. Appellee further testified that he refused to make further payments after Christmas 1950, because the signs were not serviced.

A jury trial was had and in answer to special issues the jury found: (1) that the words 'Glass-Glo Beads were tested and changed to Scotchlite Material is to be furnished by R. L. Magill on all replacements of same. No labor charge for application. This is agreed on at signing of Contract.' Were not in the contract at the time appellee signed the same; (2) that it was agreed between the parties that the words quoted in (1) supra, were to be added and were to become a part of the contract between the parties; (3) that appellant did not paint and maintain the signs in all respects except as to replacing scotchlite thereon, and (4) that the failure of appellee to furnish scotchlite material as needed for the maintenance of the signs did not excuse appellant's failure to maintain them.

There was no objection made to the...