Patton v. Crews
| Decision Date | 15 January 1954 |
| Docket Number | No. 15475,15475 |
| Citation | 264 S.W.2d 467 |
| Parties | PATTON v. CREWS et al. |
| Court | Texas Court of Appeals |
Rogers & Eggers, and Guy Rogers, Wichita Falls, for appellant.
No attorney represented appellees on this appeal, hence no brief filed in this court for appellees.
Nelson & Sherrod and Stanley Kirk, Wichita Falls, filed motion for rehearing on behalf of appellee.
From a judgment for plaintiffs in the amount of $2,571.55 to be applied as credit upon a debt of $4,514.59 owing the defendant, the defendant appealed. The trial court adjudicated the indebtedness owing defendant at $4,514.59 before application of credit at the figure of $2,571.55.
Judgment reversed as to appellees and rendered for appellant in the amount of $4,514.59.
During the year of 1952 Ira Crews and J. M. Crews were doing business as Crews Brothers, Contractors. They were in the construction business in the vicinity of Wichita Falls, Texas, and they had acquired nine lots upon which they proposed to build nine houses, primarily as speculative enterprises. In other words, they wanted to build houses and place them on the real estate market to sell them at a profit. J. F. Patton was in business in Wichita Falls, Texas, using the business name of Patton Roofing Company. He was doing business in the nature of that done by many lumber yards in that he was entering into contracts with building contractors whereby he arranged for the financing of such contractors in the building of houses, and at the same time provided as part and parcel of the contracts upon said transactions to furnish all the material to be used by the contractors, meet the pay rolls of their employees and the contractual payments to their subcontractors, and keep all bookkeeping records of the enterprise until it was concluded.
As to the proposed enterprise of Crews Brothers, Contractors, Ira and J. M. Crews did on or about May 16, 1952, contract with J. F. Patton in accordance with the aforementioned character of usage. In part the contract provided: 'Supplier is to furnish all material needed to build said houses at his regular retail price and to furnish money for payroll and subcontractor during construction. * * *'
By August 15, 1952 there had been completed and sold five of the contemplated nine houses. About this time there was arisen a dispute butween the brothers Crews and Patton. As result of this, Ira and J. M. Crews sued J. F. Patton alleging the contract, which was made a part of their cause of action, alleging their willingness, readiness and ableness to carry out their part of the same at all times prior to institution of the suit together with their offers in this regard. Then they alleged that Patton refused to perform the duties incumbent upon him as his part of the contract as a breach thereof on his part. They alleged that by reason of such breach on the part of Patton that they were denied a profit of $6,000 upon the four houses that they could not build and sell upon their remaining lots because of the breach of the contract by Patton, and they sued for damages in said amount, whith interest and costs. They sued also for an accounting from the books, records and accounts as to the enterprise in so far as there had been performance upon the contract, and for such monies as Patton might owe to them upon the transaction to date of the suit, as such accounting revealed owing to them by him.
J. F. Patton, as defendant to said suit, filed his answer and cross-action against the brothers Crews and alleged they owed to him upon the contract a sum slightly in excess of the indebtedness finally found by the jury to be their indebtedness to him to date of the suit. He denied any breach of the contract to the plaintiffs and affirmatively plead an agreed cancellation as to further performance thereunder by the parties thereto upon there having been a decline in the real estate market about the time the five houses completed were finished and sold. Patton joined the plaintiffs in request and prayer for an accounting to date of the suit, and prayed for judgment for his debt.
It is to be noted that both plaintiffs and defendant in their pleadings sued in reliance upon the written contract. Nowhere was there any fraud or duress, etc., alleged in connection with its execution nor was it sought to be set aside either in whole or in part, or reformed in any respect by either party. The suit was based upon the contract as it read, and indeed, during the course of the trial and at its very beginning and during the time the first witness' testimony was being introduced, the plaintiffs, through their attorney in the trial court, took the position in the course of objection to questions asked such witness by the defendant's attorney that this was a suit upon a written contract and testimony by the witness that would vary or in any way affect or change the terms of the same would be improper. However, in the plaintiffs' petition upon which they went to trial they alleged that the defendant Patton prepared the contract in the presence of the plaintiffs, or one of them, and that he chose his own words in the preparation of the same, and as to the provision thereof-'Supplier is to furnish all material needed to build such houses at his regular retail price * * *' (emphasis ours) did at the very time of preparation of and execution of the contract represent to the plaintiffs that the phrase meant that he would sell his merchandise to them at prices as low or lower than the prices at any other lumber yard in Wichita Falls. Despite the allegation, the extent of its use in so far as the rest of the plaintiffs' petition is referable thereto is the contention on the part of the plaintiffs that by reason thereof the defendant Patton is estopped to make claim against the plaintiffs for amounts upon items of the account upon which the debt owing such defendant is based which would be in excess of the lowest prices charged in Wichita Falls during the period in question.
During the course of the trial the defendant properly objected and excepted to all evidence of the plaintiffs which was introduced and accepted by the trial court whenever such evidence tended to vary the terms of the written contract upon which plaintiffs'...
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