Peden Iron & Steel Co. v. McKnight

• Citation: 128 S.W. 156
• Parties: PEDEN IRON & STEEL CO. v. McKNIGHT et al.
• Decision Date: 23 March 1910
• Court: Court of Appeals of Texas

128 S.W. 156

PEDEN IRON & STEEL CO. v. McKNIGHT et al.

Court of Civil Appeals of Texas.

March 23, 1910.

Rehearing Denied May 4, 1910.

Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.

Action by the Peden Iron & Steel Company

against J. F. McKnight and another. Judgment for defendants, and plaintiff appeals. Affirmed.

The Peden Iron & Steel Company brought this suit against J. F. McKnight and the city of Taylor, and sought to recover the amount of an assignment which the Lange Manufacturing Company had made to the Peden Iron & Steel Company of a part of the contract price of certain labor and materials which it had contracted to furnish J. F. McKnight, the general contractor, for the erection of a building for the City of Taylor.

It is not necessary to set out in detail the pleadings of the several parties; it being sufficient to say that they presented the issues considered and decided by the trial court. The judgment went for the defendants, and the plaintiff has appealed. The trial judge filed findings of fact and conclusions of law, which are as follows:

"Findings of Fact

"(1) Plaintiff is a corporation with its domicile in Houston, Harris county, Tex. The defendant city of Taylor is a municipal corporation located in Williamson county, Tex. The defendant McKnight is a resident of Lavaca county, Tex.

"(2) That on the 29th day of March, 1905, the defendant McKnight made and entered into a written contract with the city of Taylor, whereby he obligated himself to erect and construct for the city of Taylor a two-story brick building, to be used by said city as a city hall, in consideration of which the said city of Taylor agreed to pay said McKnight about the sum of $23,313. Said contract as set out in full in the statement of facts is here referred to and made a part hereof. That said McKnight erected said building in accordance with said contract, and the same was finally accepted by the city and the final payment made to said McKnight on same on the 19th day of June, 1906.

"(3) That on or about the 24th day of May, 1905, the defendant McKnight made and entered into a written contract with the Lange Manufacturing Company, by which the said company agreed to build and complete all the galvanized iron and tin work, steel ceiling, etc., used in said building, in consideration of which said McKnight agreed to pay said company the sum of $1,800, to be paid in installments as the work progressed. Said contract is referred to as a part of these findings, and reference is made to the statement of facts for a full statement of same.

"(4) That the said Lange Manufacturing Company purchased a large portion of the materials necessary to complete said contract from the plaintiff company, for which materials the said Lange Manufacturing Company agreed to pay plaintiff the sum of $989.96; it being further understood and agreed that, in consideration of the Lange Company's paying said sum of $989.96, the plaintiff would deliver to the Lange Company the materials specified, and would, in addition thereto, give said Lange Company a credit of $270 on an outstanding account owing by said Lange Company to plaintiff.

"(5) That, for the purpose of paying or securing the payment of said sum of $989.96, the said Lange Manufacturing Company on the 26th day of August, 1905, by written assignment, assigned and transferred to plaintiff an interest of $989.96 in the sum of $1,800 to become due to said Lange Company from said McKnight as aforesaid. Reference is made to the statement of facts for said written assignment. That a copy of said assignment and notice of same was at once sent to said McKnight by plaintiff, and was received by said McKnight before any advances were made by him to the Lange Company. That upon its receipt said McKnight notified plaintiff that he would not be responsible for the payment of said sum so assigned.

"(6) That the greater portion, if not all, of the materials so furnished the Lang Company by plaintiff, were used by said Lange Company in the construction of said city hall.

"(7) The city of Taylor had notice, before the final completion and acceptance of said city hall, and before final payment to McKnight therefor, that said materials had been used by said Lange Company in the construction of the city hall, and had notice of the written assignment to plaintiff, and that plaintiff was endeavoring to hold both the city and McKnight for the payment thereof, and that the city at such time owed McKnight on said building more than the amount of said assignment.

"(8) I find: That said Lange Manufacturing Company completed the work under its contract with McKnight, but that a portion of said work was defective, and was rejected by the architect in charge of the construction of said building, and that McKnight in his settlement with the city was forced to deduct from the contract price due him by the city about the sum of $310 by reason of such defective work on the part of said Lange Company. That, in addition to such deduction, McKnight thereafter was forced to expend under his contract with the city the sum of $81.20 for repairs on the roof of said city hall, due to defective work of said Lange Company. I further find that the steel ceiling selected and used by the city in said building cost $93 less than the ceiling specified in the Lange Company's contract, and that it is a general custom among builders and contractors, and is considered a part of the contract where the price of material is specified, to deduct the difference in price where a less expensive material is used. I therefore find McKnight is entitled to a further credit of $93 on the $1,800 contract on account of the selection and use of a cheaper ceiling.

"(9) I find that soon after commencing working under its said contract, and before any payments had been made on account thereof, the Lange Manufacturing Company represented to the defendant McKnight that it would be unable to carry out its contract in the construction of its part of the work on...