Texas Mfg. Co. v. Fitzgerald

• Decision Date: 10 April 1915
• Docket Number: (No. 8152.)
• Citation: 176 S.W. 891
• Parties: TEXAS MFG. CO. v. FITZGERALD.
• Court: Texas Court of Appeals

176 S.W. 891

TEXAS MFG. CO. v. FITZGERALD.

(No. 8152.)

Court of Civil Appeals of Texas. Ft. Worth.

April 10, 1915.

Rehearing Denied May 15, 1915.

Appeal from Tarrant County Court; Charles T. Pruitt, Judge.

Action by J. H. Fitzgerald against the Texas Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ike A. Wynn, of Ft. Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

BUCK, J.

J. H. Fitzgerald, appellee herein, sued the Texas Manufacturing Company, appellant, to recover for certain repairs made on a building alleged to have been owned and controlled by the defendant company, alleging that he furnished in the performance of said repairs lumber and other material of the reasonable value of $69.08, and labor in the sum of $83.70, and the service of a foreman which he alleged of the reasonable value of $50, and he sought to recover further the sum of $50 for his own work and labor and risk in doing said work, making a total of $252.78. He further alleged that the contract of employment was made on behalf of defendant company by one W. W. Mayer, whom he alleged to be the agent and representative of the defendant company and authorized to so contract and bind said company.

Defendant answered, specifically denying all the allegations of the plaintiff's petition, including the ownership of the building upon which the repairs were made and the agency of Mayer, and further denied that it had ever entered into such a contract, or that any person with authority so to do made any such contract for defendant company.

Upon a trial before the court and jury a verdict and judgment was rendered for plaintiff in the sum of $220.68, from which judgment the defendant appeals.

The building in question, and alleged to be owned and under the control of defendant company, was situated at the corner of First and Throckmorton streets in the city of Ft. Worth, and occupied upon the second floor by the Midland Brass Works and on the first floor by the Texas Laundry. The work done thereon for which plaintiff sought a recovery and for which he alleged the defendant, through said W. W. Mayer, agreed to pay plaintiff the reasonable and necessary cost thereof, was on the floor occupied by the laundry and consisted of "shoring" or propping up the ceiling over and near the engine, and it seems that, on account of the heat from the engine and on account of the interference with the operations of the laundry, most of the work was performed on two Sundays, for which labor plaintiff sought to recover double the amount of wages usually paid for like services on week days, such double charges being alleged by him to be reasonable, usual and customary for such Sunday work. Defendant specially denied the right of plaintiff to recover such double wages, and that, in any event, plaintiff was not authorized under the alleged contract to perform the work on Sunday and charge therefor such double wages.

In its first assignment of error appellant complains of the refusal of the court to give its first special instruction, which was in effect a peremptory instruction for the defendant, on the ground that there was no evidence that W. W. Mayer was the agent of the Texas Manufacturing Company, defendant, or was authorized to act for it in this transaction, and therefore the court should have instructed the jury to find for the defendant. Frank B. Creighton, manager of the Texas Laundry Company, testified, in part, as follows:

"The Midland Brass Works was located over the Texas Laundry Company, and there was a man named Mayer in charge of the Midland Brass Works at that time."

He further testified that the laundry each month paid its rent to the defendant company, and identified a letter head, which he testified was used by the defendant company, and on which there was a picture of the building in question, and under the picture these words: "Our Brass Foundry and Machine Shops." He further testified that when the plaintiff came to the building for the purpose of seeing about making the repairs, that witness took the plaintiff back to show him the work to be done, and afterwards sent him to Mr. Mayer, and that he later heard a conversation between Mr. Mayer and plaintiff and heard Mayer call up the Texas Manufacturing Company and ask for Mr. Butler, the president of said company, for authority to do the work, and that Mr. Mayer told the person who answered the phone the condition of the building and told him what the repairs would cost, to wit, "not less than $250 and might run up to $1,000," and that Mayer thereupon turned around and said to witness:

"You better do it and when it is done, you O. K. it for the safety of the laundry and I will O. K. the bill."

Then the work was started. After the work was completed, the plaintiff testified that he went to see Mr. Butler about the payment of the bill, and that Mr. Mayer was present and —

"Mr. Butler said he would have Mr. Mayer go and examine the work; and he kicked at the price of the work and he said he did not propose to pay anything. He talked with me rough and he said he would not pay any bill unless he knew the work was done, and he would send Mr. Mayer up to see what had been done, and I suggested that I would meet Mr....