Robinson v. Faulkner, 16992

• Decision Date: 01 December 1967
• Docket Number: No. 16992,16992
• Parties: D. M. ROBINSON, Appellant, v. D. L. FAULKNER, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 209

422 S.W.2d 209

D. M. ROBINSON, Appellant, v. D. L. FAULKNER, Appellee.

No. 16992.

Court of Civil Appeals of Texas.

Dallas.

Dec. 1, 1967.

Rehearing Denied Dec. 22, 1967.

Alvin Boyd, Dallas, for appellant.

Gerald R. Coplin, of Passman, Jones, Stewart, Andrews & Hunter, Dallas, for appellee.

CLAUDE WILLIAMS, Justice.

D. L. Faulkner brought this action against D. M. Robinson seeking damages for breach of an oral contract involving the construction of an apartment house project in Dallas, Texas. Robinson filed a cross-action based on the same oral contract in which he sought an amount of money which he claimed to be due and owing him thereunder. Following trial before the court, without a jury, judgment was rendered favorable to Faulkner and denying Robinson any relief. The court filed findings of fact and conclusions of law to which Robinson leveled exceptions.

Appellant Robinson predicates his appeal from such judgment upon four points of error which we find lacking in merit and are therefore overruled. The judgment is affirmed.

By his first point appellant contends that the trial court erred in finding that the contract between the parties was for $24,000 since the 'weight of the competent evidence' establishes an agreed price of $28,000.

The trial court expressly found that the sum of $24,000 was the agreed amount of the verbal contract entered into between the parties. This being a nonjury case, the trial court was the judge of the credibility of the witnesses and the weight to be given their testimony, and the findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of the jury. Where there is evidence of probative force to support the findings and judgment, they are controlling on the reviewing court and will not be disturbed, even though the evidence is conflicting and the appellate court might have reached a different conclusion. 4 Tex.Jur.2d, § 839 pp. 398--401. However, an appellate court may set aside a finding or judgment of the trial court where either is without any substantial support in the evidence or where such finding is against the great weight and preponderance of the testimony. Where the finding of the trial court is attacked as being against the weight of the competent evidence we are required to weigh and consider all of the evidence in the case regardless of whether there is some evidence of probative force to support the judgment. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); 4 Tex.Jur.2d, § 839, pp. 403--404, and cases therein cited.

In obedience to these rules we have carefully considered all of the evidence bearing upon this finding, as reflected in the statement of facts, and find that it is indeed conflicting. Both parties agree that the contract used upon was verbal. Appellant Robinson testified that the contract price was $28,000. Appellee Faulkner testified that it was $24,000. The witness Gene Hadsell, an insurance agent, testified that appellant had requested him to secure the issuance of a payment bond for the work in question, such bond being for the sum of $24,000. The witness Charles Smith testified that he recalled a conversation wherein he assisted both appellant and appellee to estimate the cost of labor and material on the job in question. His testimony supported the theory of appellee concerning the total cost of the contract. Appellant introduced certain exhibits representing advance payments or 'draws' on the amount due under the contract, two of such exhibits containing mathematical calculations which would lead to the conclusion that the contract price was $28,000. The third exhibit introduced by appellant did not support such calculation.

It is quite clear from our review and evaluation of all of the evidence in this case that the trial court had before it conflicting evidence of probative force and saw fit to choose the evidence supporting appellee rather than that of appellant. We find that the evidence was entirely sufficient to support the trial court's findings.

By his second point appellant contends that the court erred in finding that appellant had defaulted in the performance of the work and that, as a result of said default, appellee was damaged in the sum of $1,226.70. Appellant says that the 'weight of the competent evidence' establishes no default and 'there is no competent evidence' as to damages arising from the alleged default. Such point is multifarious but we will consider the same in the light of the argument advanced.

The trial court, in its findings of fact, found that appellant left the job before it was complete and also that some of the work which had been performed was not acceptable. The court further found that appellee had to do the work which was properly the responsibility of appellant and therefore was entitled to a credit of $1,226.70 upon the basic contract.

Again, our examination of this record in the light of the points presented has required us to give consideration to all of the testimony. A number of disinterested witnesses testified concerning the various items of work required to be done in order to complete work that should have been done by appellant prior to the time he left the job. There was evidence that appellant did leave the job prior to the time his part of the work was finished. While the testimony may be contradictory in nature yet the trial court resolved the conflict in favor of appellee. Appellant argues that those things in issue were only 'minor items' and that the specific evidence given by appellee as to the character of the work done was so general and unresponsive as to be without credible basis. However, the testimony was admitted without objection and was properly before the court. Again the situation is one where the credibility of witnesses and the weight to be given their testimony is within the province of the trial judge and he may disregard controverting testimony if he sees fit. Moser v. McLemore 266 S.W.2d 253 (Tex.Civ.App., Amarillo 1953); Liles v. Winters Independent School District, 326 S.W.2d 182 (Tex.Civ.App., Austin 1959). We find abundant evidence in this record to support the trial court's findings.

By his third point appellant contends that since his cross-action was based upon a sworn account, duly verified, the unsworn answer of appellee was not sufficient to join issue and therefore the trial court should have awarded him judgment based upon such verified pleadings.

Appellant's cross-action alleged that he entered into an oral contract with appellee on or about April 1, 1965 whereby he was to be a subcontractor to furnish mud and apply mud to the walls and prepare the walls for paint for a total consideration of $28,000. He further alleged that the labor was done and materials furnished at the special instance and request of appellee, pursuant to the oral contract. Appellant set out an 'itemized account' and made affidavit wherein he swore to his claim stating that it was 'just and true' and that the same is due, and that all just and lawful offsets, payments and credits have been allowed. Appellee did not file a verified answer to appellant's cross-action but proceeded to trial upon his...