Stone v. Morrison & Powers
Decision Date | 19 February 1927 |
Docket Number | (No. 11678.) |
Citation | 294 S.W. 641 |
Parties | STONE v. MORRISON & POWERS.<SMALL><SUP>*</SUP></SMALL> |
Court | Texas Court of Appeals |
Appeal from District Court, Clay County; Robert Cole, Special Judge.
Suit by H. H. Stone against Morrison & Powers, in which the defendants filed a cross-action. Judgment for defendants, and plaintiff appeals. Affirmed.
W. G. Eustis and Frank Holaday, both of Henrietta, for appellant.
Taylor, Muse & Taylor, of Wichita Falls, and Wantland & Glasgow, of Henrietta, for appellees.
In this case it is shown that J. M. Purvis contracted with the commissioners' court of Clay county to construct certain bridges over streams situated in Clay county. His contract was assigned to H. H. Stone, and Stone made a contract with W. B. Morrison and J. J. Powers to cast and drive concrete piles for three bridges, and agreed to furnish all rock, sand, gravel, cement, and reinforcing steel necessary for such work. The contract provided that the party of the second part, Morrison & Powers, was to do the work in accordance with the plans and specifications for such work on file in the engineer's office, and was to receive from party of the first part $2.75 per lineal foot for casting and driving piles. This contract was made January 27, 1925. On May 15, 1925, H. H. Stone filed suit against Morrison & Powers, in which he alleged the contract made with them, and alleged that party of the second part had stated to him at the time of making the contract that they were fully equipped, competent, and capable of performing the work, and ready and willing to perform the work in accordance with the provisions of the notices to the contractors, specifications, proposals, and plans theretofore made for such work; and further alleged that defendants had failed and refused so far to do any work on said road and bridges, and had acknowledged to plaintiff that they did not have the said pile driver or other tools as represented and were not able to procure them or to perform the said work; that, therefore, plaintiff, in order to comply with his contract with the commissioners' court, had attempted to perform said work himself, and had placed a man with workmen in charge of said work, but that said workmen were forcibly stopped from doing said work by defendants, and that plaintiff was unable to proceed with said work. He alleged that in order to do the work contracted to be done by defendants, it would cost some $10,000, and the defendants had done only about $100 of the said work, and were insolvent and were unable to do said work, and they had failed and refused to perform it and had refused to permit or let plaintiff do said work. He prayed for a writ of injunction, restraining defendants from stopping plaintiff in the prosecution of said work, and that upon final hearing that plaintiff have judgment against defendants for the money paid them, or for them, his damages and costs of suit, and that the temporary injunction therein prayed for be perpetuated. The petition in the transcript, in which plaintiff sought an injunction, is not signed by the attorneys, nor sworn to, but there is no objection thereto on account of such omission, either in the court below or here, and inasmuch as the injunction was granted, evidently on the petition, we have concluded that the lack of signature and verification is due to the inadvertence of appellant's attorney or the clerk, and that we may disregard such defects.
The writ of injunction was granted. The defendants filed a cross-action, alleging that they had not represented to plaintiff that they were financially able to perform the work, but, on the contrary, before entering into the contract with the plaintiff, plaintiff inquired of the defendants if they had equipment sufficient to perform the services and labor they were contracting to perform, and that defendants informed plaintiff that they had a pile driver and hammer, but that they did not know whether said hammer would be sufficient to perform said work or meet the specifications required by the engineer. That, thereupon, plaintiff stated to defendants that if the hammer owned by them was not sufficient to perform said work that he, plaintiff, would procure for them sufficient equipment to perform said work. Plaintiff further informed the defendants that it was his opinion that the equipment then owned by them would be sufficient to do the work.
In the way of cross-action, the defendants sued for damages for breach, but did not contest the granting of the injunction or seek to have said injunction dissolved.
The cause was tried, apparently on the defendants' cross-action. The court submitted to the jury certain special issues, and the jury found (1) that plaintiff, Stone, agreed with the defendants, after the execution of the contract of January 27, 1925, that if they would continue on the job or work, that plaintiff would furnish them proper and capable equipment with which to complete the contract; (2) that plaintiff agreed with the defendants, after the execution of the contract, that if they would remain on the job and complete the same that he would take care of their pay roll and furnish them money to pay their personal expenses while they were completing the job; (3) that the defendants continued work on the job by reason of plaintiff's promise to furnish them proper equipment, advance their pay roll, and take care of their personal expenses; (4) that the plaintiff did not furnish the kind of equipment that he agreed to furnish if the defendants would continue on the job and complete the same; (5) that the reasonable cost for completing the contract between plaintiff and defendants after May 15, 1925, was $2,250; (6) that it would have reasonably cost $5,232.94 to complete the contract entered into by the defendants with the plaintiff, if the plaintiff had furnished the proper equipment with which to do the work; (7) that the cost of labor in casting and piling that was not driven by the defendants and not condemned was $1,629.55; (8) that the defendants were not at fault for any of the damage done to any of the piling driven after they were enjoined; (9) that the necessity for the construction of the bents did not arise by reason of any fault upon the part of the defendants in the casting and curing of the piling; (10) that the plaintiff was not prompted by malice to sue out the writ of injunction; (11) that the plaintiff did take possession of the tools of the defendants without their consent; (12) that the reasonable value of the defendants' tools taken by plaintiff was $300; (13) that the plaintiff did use the tools of the defendants without the consent of defendants (14) that the reasonable value for said tools per day was $2.50, and that the plaintiff used said tools for 117 days; (15) that the writ of injunction sued out on May 15, 1925, was wrongfully sued out.
Upon this verdict the court entered judgment for defendants in the sum of $2.797.18, with interest and costs of suit. From this judgment the plaintiff has appealed.
Opinion.On October 9, 1926, this court granted appellant's motion for certiorari and to file a supplemental transcript, in which the order of the court granting an extension of time for the filing of the bills of exception and the statement of facts was shown. Later, appellant filed another motion to file a supplemental transcript which contains the order overruling the demurrers and exceptions of plaintiff to the first amended answer of defendants. We grant this order. On January 13th, appellant filed his motion...
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...v. Greenwich, etc., Co., 183 N.Y. 306, 76 N.E. 153, 2 L.R.A.,N.S., 288, 111 Am.St. Rep. 751, 5 Ann.Cas. 443; and Stone v. Morrison & Powers, Tex.Civ.App., 294 S. W. 641, 644, which holds that the "word `material' means the `substance of which anything is made.'" And as pointed out in these ......
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Stone v. Morrison & Powers
...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 W. G. Eustis and Frank......