Wilkens v. Wilkerson

• Decision Date: 02 June 1897
• Citation: 41 S.W. 178
• Parties: WILKENS v. WILKERSON.
• Court: Texas Court of Appeals

41 S.W. 178

WILKENS v. WILKERSON.

Court of Civil Appeals of Texas.

June 2, 1897.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by Alvin W. Wilkerson against A. G. Lowe, in which C. W. Wilkens was summoned as garnishee. From a judgment against him, the garnishee appeals. Affirmed.

Willie, Campbell & Ballinger, for appellant. Maco Stewart and E. S. Easley, for appellee.

NEILL, J.

The nature of this suit will be understood from the conclusions of fact found by the trial judge, which we adopt. They are as follows:

"On the 18th of March, 1895, the plaintiff, A. W. Wilkerson, obtained a judgment in this court in cause No. 17,526 against A. G. Lowe for $606.30, and a writ of garnishment was issued to C. W. Wilkens, who was served therewith on the 2d of April, 1895, and the garnishee, Wilkens, denied any indebtedness to said Lowe, and thereupon said A. W. Wilkerson controverted the garnishee's answer, and said Lowe also came in and contested the answer of the garnishee, and on the trial of the garnishment suit evidence was heard in behalf of the plaintiff, Wilkerson, and the garnishee, Wilkens, which was voluminous and conflicting, from which I find that in 1894 a written contract was entered into between said A. G. Lowe and C. W. Wilkens, by which Lowe obligated himself to construct for Wilkens a residence on Clear creek, in Galveston, and also furnish the material, and the agreed price was $1,945, the contract being in July, 1894, and Lowe was to complete the building by October following; but, after the frame was partly put up, there arose a disagreement between Lowe and Wilkens' agent as to the size of the frame timbers, which caused a suspension of the work until some time in September, 1894, when the parties compromised their disagreement as to the size of the timbers, and agreed upon the extension of the time of completion of the building for about a month. According to the written agreement for the construction of the building, there was a stipulation that for each and every day that Lowe failed to finish the building Wilkens was to be entitled to demurrage of three dollars per day. After signing the contract by the parties, there were agreed alterations and changes and additions made by agreement between the parties and their agents, which involve an additional cost and value of work and material, which the witnesses greatly differed as to values; some of the witnesses estimating the value of the additional work and materials as low as $100, and some of the witnesses estimate as high as $1,500. That the value of the extra work and materials was at least $305, which, added to the written contract price of $1,945, would make a total indebtedness of Wilkens to Lowe of $2,250, of which Wilkens has paid in cash and checks and orders $1,529.22, leaving a balance owing of $720.78; but I find further that there was some unnecessary delay in the completion of the building, and that Wilkens should be allowed $120 for the damage he sustained by the unnecessary delay in turning the residence over to Wilkens, which amount should be deducted from the $720 owing by Wilkens to Lowe on the building, which left Wilkens indebted to Lowe at the time of the service of the writ of garnishment $600. That, after Lowe had...