Stone v. Morrison & Powers

• Decision Date: 19 October 1927
• Docket Number: (No. 819-4855.)
• Citation: 298 S.W. 538
• Parties: STONE v. MORRISON & POWERS.
• Court: Texas Supreme Court

298 S.W. 538

STONE v. MORRISON & POWERS.

(No. 819-4855.)

Commission of Appeals of Texas, Section B.

October 19, 1927.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by H. H. Stone against Morrison & Powers, in which defendant filed a cross-action. Judgment for defendant was affirmed by the Court of Civil Appeals (294 S. W. 641), and plaintiff brings error. Judgments of trial court and Court of Civil Appeals reversed, and cause remanded to trial court.

W. G. Eustis and Frank Holaday, both of Henrietta, and John T. Suggs, of Denison, for plaintiff in error.

Wantland & Glasgow, of Henrietta, and Taylor, Muse & Taylor, of Wichita Falls, for defendant in error.

SPEER, J.

The plaintiff in error sued the defendants in error upon a certain construction contract to recover damages for money paid and for an injunction to prevent the defendants from interfering with the plaintiff's completion of the work undertaken. The defendants denied generally the allegations of the petition and reconvened for damages for an alleged breach by plaintiff. The cause was submitted to a jury upon special issues upon which the trial court entered judgment for the defendants, which judgment was affirmed by the Court of Civil Appeals. 294 S. W. 641.

Plaintiff in error presents three points for reversal: First, that the contract between the parties, being in writing and complete within itself, the additional agreement of the plaintiff in error upon which the defendants in error recovered was unenforceable for want of consideration; second, that the burden of proof being upon the plaintiff below upon the whole case, he was entitled to open and conclude the argument to the jury, and that the court erred in permitting defendants in error to open and conclude; and, third, he presents a complaint as to the admission of defendant in error Morrison's testimony, contending that the same was expert testimony when the witness had not shown himself qualified as an expert.

The Court of Civil Appeals has not clearly stated its views upon the question first presented, that of want of consideration for the plaintiff in error's promise upon which the defendants in error recovered. Justice Buck, in writing the opinion, does say, however:

"We think both the pleading and evidence were sufficient to sustain the conclusion evidently reached by the jury and the trial court that, at the time the contract was signed, or shortly thereafter defendants told plaintiff that they did not know whether they had sufficient equipment and especially a hammer of sufficient size to do the work contracted to be performed, and that plaintiff told them that he would buy or rent them a hammer sufficient, if necessary. Therefore the assignment is overruled."

The contract which was for the construction of certain bridge work was in writing, and clearly stipulated what the plaintiff in error was to furnish, and did not include the hammer for driving the piles. By it, the defendants in error agree —

"to cast and drive concrete piles for three bridges on state highway No. 50, F. A. P. 449A, in Clay county, Tex., in accordance with plans and specifications for such work on file in engineer's office."

The defendant in error's recovery was upon the failure of the plaintiff in error to furnish this hammer after he had agreed to do so. Mr. Morrison, one of the defendants in error, testified:

"They entered into the work, not knowing what the specifications were. His recollection was that he learned what the specifications were about a week after the contract was signed. That was when he found out the hammer they had would not work. `We told Stone that we hadn't the equipment to drive the piling and had made arrangements to take care of the freight and so on to get it here. They began building forms on the job about ten days after the contract was signed up. After they went to work they found that the specifications called for a hammer they did not have. * * * Mr. Puckett, the engineer in charge, says: `Gentlemen, what it will take to drive that piling is right there. Can you read it?' And we read it. He wouldn't stand for nothing but a No. 1 hammer, and we told Mr. Stone we didn't have it. * * * The agreement we had with Mr. Stone, after we told him we didn't have a No. 1 hammer; he says, `Now, I will tell you what you boys do, you go down to Fort Worth and rent one. I know there are plenty of them in the country. I will help you get it;' and so me and Mr. Powers went to Fort Worth and to Dallas and looked all over the country and couldn't find a No. 1 hammer, so we called Mr. Stone and I told him to meet us in Mr. Powers' office that evening, and he said he would be there. * * * Mr. Powers and I then discussed it and decided we couldn't handle the job, so we met Mr. Stone and told him the whole thing, under the conditions, that this hammer wouldn't do at Wichita Falls, and wouldn't any of the rest of the equipment do; that the boiler was too light to handle a No. 1 hammer while it would handle a No. 2, so we went around and told him that we had tried all over that country, * * * and he said, `You boys are discouraged; you go back to work up there and,' he says, `I will see you through with this thing if I have to buy new equipment; I have got what it takes to buy it.'"

This constitutes the gist of the evidence supporting the recovery. The submission of the defendant's issues were properly objected to.

It is fundamental that every contract must be supported by a consideration. It is no less true that a supplemental contract whereby a new or additional obligation is assumed must likewise be supported by a consideration for such supplemental agreement is nevertheless a contract itself. The written contract between the parties being complete within itself, the subsequent agreement by plaintiff in error to furnish a hammer for driving the piles could not form the basis of an action for damages unless the same was supported by a new consideration. There is no hint in the evidence that there was any consideration other than the completion of the work undertaken in the original contract. The defendants in error's agreement to return to the work and complete the job was no consideration at all for the new promise. They already were under contract obligations to do this very thing, so that they never undertook any new burden by the promise, nor did the plaintiff in error receive anything he was not entitled to receive under the terms of the original contract. It is clear from the pleadings and the evidence that the promise of Stone to furnish the hammer was no part of his original undertaking when the contract...