Stude v. Koehler

• Decision Date: 24 May 1911
• Parties: STUDE et ux. v. KOEHLER et ux.
• Court: Texas Court of Appeals

Page 193

138 S.W. 193

STUDE et ux. v. KOEHLER et ux.

Court of Civil Appeals of Texas. San Antonio.

May 24, 1911.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by C. F. Koehler and wife against H. W. Stude and wife. Judgment for plaintiffs, and defendants appeal. Reformed and affirmed.

E. P. & Otis K. Hamblen, for appellants. Baker, Botts, Parker & Garwood, for appellees.

NEILL, J.

The appellees, C. F. and Louise S. Koehler, sued the appellants, H. W. and Louise Stude, to recover $840 with interest thereon from July, 1905, alleged to be due under and by virtue of a written contract, the substance of which is shown in our conclusions of fact. The substance of defendants' answer, in so far as it affects the questions involved in this appeal, is that the contract upon which plaintiffs base their demand was not performed by the plaintiffs in strict accordance with its terms. The case was tried before a jury and resulted in a verdict and judgment in favor of plaintiffs for the sum, with interest, sued for.

Conclusions of Fact.

The contract sued on is of two parts; plaintiffs being designated as parties of the first part, and defendants as parties of the second part. In stating the substance of the contract, we shall refer to the parties as plaintiffs and as defendants, instead of "parties of the first part" and "parties of the second part," as they are designated in the agreement. It recites that plaintiffs own the western part of lots 6 and 7, block 20, on south side of Buffalo bayou in the city of Houston, Tex., fronting Congress avenue and Travis street; that defendants own the adjoining part of said lots fronting on Congress avenue, running back in depth across them; that the plaintiffs are now (April 14, 1904, the date of contract) about to construct a three-story brick building on the property owned by them; that by agreement of all parties (plaintiffs and defendants) plaintiffs will construct a good and substantial brick wall on the line dividing their property, which line is the center of the upright posts in the wall now (date of contract) standing between the buildings of said parties on said land, so that said wall shall rest partly and equally on the land of plaintiffs and defendants; and that said line shall be the dividing line between them.

The contract then contains these stipulations and agreements: (1) That said wall shall be built in a good and substantial manner and of sufficient strength to form a party wall and carry a building such as is contemplated by the plaintiffs and also a building contemplated to be built in the future by the defendants. (2) That in erecting their building neither party shall put, place, or build their joists or other timber in said brick wall, but shall abut the end of said joists and timbers against said wall, fastening the same to the wall by suitable appliances made of iron or other fireproof material; the object being not to have combustible material built in the wall itself. (3) That defendants have paid the plaintiffs the sum of $840 in full for one-half of the construction of said wall to the height of 34 feet from the pavement as it now stands, which point is to be marked with slate in joints; said wall to run from Congress street back along the line dividing their property to the rear end of said wall, being all the wall now to be used by the defendants. (4) That when the defendants, their heirs or assigns, shall raise their present building to a greater height, or construct a new building on the property belonging to them, then they shall pay plaintiffs one-half of the reasonable value of so much of said wall as they shall use that is not covered by the present payment.

The above is the substance of so much of the contract as is pertinent to any of the questions involved in this appeal.

The defendants had not in fact paid the $840 mentioned in the third clause of the contract as above stated, but contemporaneous with its execution executed their written obligation therefor, which is as follows: "$840.00. Houston, Texas, April 14, 1904. We hereby promise to pay to C. F. Koehler, Ernestine Koehler and Louise S. Koehler the sum of eight hundred and forty dollars for half interest in brick wall as specified in contract made between said parties and ourselves, the said amount to be paid as soon as the wall is built to the thirty-four (34) feet height and accepted by the architect. Louise Stude. H. W. Stude."

On July 5, 1905, the architect certified that the brick wall built between the Koehler property on the corner of Travis and Congress streets and the Stude property on Congress street had been built to the height of 34 feet in the manner specified by agreement between the parties, and that the Koehlers had performed their part of said contract.

One of defendants' grounds of defense is that plaintiffs so erected the wall as to encroach on their land more than was authorized by the agreement. The evidence is not such as to make this contention an issue of fact, but conclusively shows that the wall was constructed along the line designated by the agreement, and that it did not occupy more of defendants' land than was provided by the contract. These findings, however, accord with the verdict.

The other ground of defense pleaded by defendants is that plaintiffs, in erecting their building, placed joists and other timbers into the brick wall constructed by them along the dividing line in violation of the express terms of the agreement between the parties. It is not denied by the plaintiffs, but admitted in their pleadings, that their contractor, in constructing their building, without their knowledge and contrary to their instructions, placed the ends of five wooden beams in said wall, which extended therein about six inches; that, after this suit was brought, plaintiffs opened up the wall and, in doing so, ascertained the fact that the said beams projected into the...