St. Louis Expanded Metal Fireproofing Co. v. Burgess
| Decision Date | 22 February 1899 |
| Parties | ST. LOUIS EXPANDED METAL FIREPROOFING CO. v. BURGESS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Galveston county; William A. Stewart, Judge.
Action by W. S. Burgess against the St. Louis Expanded Metal Fireproofing Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Austin & Rose, for appellant. S. S. Hanscom, for appellee.
The plaintiff, Burgess, made a contract with appellant to do certain work on the county jail then being constructed in Galveston for the contract price of $1,650. Appellant's representative, Franklin, induced plaintiff to take the work for said price, which he and plaintiff knew was inadequate, by promising to give him, at reasonable figures, other contracts of like character in the court house and jails at Hallettsville, Gatesville, and Eastland, and the court house at Galveston, which said Franklin claimed appellant had contracts for. This promise was fraudulently made to induce plaintiff to enter into this particular contract. Appellant had no intention of keeping said promise at the time it was made, and did not keep it, and afterwards gave plaintiff no opportunity to bid on said other work; and the evidence shows that he gave some of the other work to other parties. There is evidence to show that this happened before plaintiff abandoned the work in question. We conclude, further, as a matter of fact, that there is evidence to support the judgment of the court for the amount rendered in plaintiff's favor.
Conclusions of Law.
1. The testimony shows that, when plaintiff quit this work, it was unfinished; that he had already been paid about $1,152 thereon, leaving a balance of about $498 of the contract price. The testimony shows clearly that there was considerable work yet to do, and that when he abandoned the contract he demanded for work in respect thereto the sum of $403. By the contract appellant was entitled to retain 10 per cent. of the estimates for 30 days after completion of the work. It is, therefore, clear and beyond doubt that plaintiff at the time he demanded this payment had no right to it, and he was not warranted in abandoning his contract for that reason.
2. We think, however, that he was warranted in abandoning the contract by reason of appellant's conduct in reference to the promise of other work, or opportunities for other contracts promised him. He was not obligated to proceed with this contract after the acts of bad...
To continue reading
Request your trial
-
Roberts v. Roberts
...Co. v. Watkins & Kelley (Tex. Civ. App.) 179 S. W. 531; Reid v. Ragland, 156 S. W. 920. See also, St. Louis Expanded Metal Fireproofing Co. v. Burgess, 20 Tex. Civ. App. 527, 50 S. W. 486. In our opinion, this assignment does not present reversible The appellant, by several assignments, urg......
-
Scoggin v. Mason
...84 Tex. 223, 19 S. W. 472, 31 Am. St. Rep. 39; McFarland v. McGill, 41 S. W. 402, 16 Tex. Civ. App. 298; St. Louis Expanded Metal Co. v. Burgess, 50 S. W. 486, 20 Tex. Civ. App. 527; American Cotton Co. v. Collier, 69 S. W. 1024, 30 Tex. Civ. App. 105. The principle stated is merely element......
-
Gill v. Flynn
...63 S. W. 787 ; C. T. & M. C. Ry. Co. v. Titterington, 84 Tex. 223, 19 S. W. 472 ; McFarland v. McGill , 41 S. W. 402; St. Louis Expanded Metal Co. v. Burgess , 50 S. W. 486; American Cotton Co. v. Collier , 69 S. W. 1024. The principle stated is merely elementary, and is extracted from the ......
-
Missouri Loan & Investment Company v. Federal Trust Company of St. Louis
... ... 526; Rapid, etc., v. Smith, 86 S.W. 323; St ... Louis v. Burgess, 50 S.W. 486; Touchstone v. Staggs, 39 ... NORTONI, ... ...