Williams v. Baldwin
| Decision Date | 26 February 1918 |
| Docket Number | (No. 1887.) |
| Citation | 202 S.W. 975 |
| Parties | WILLIAMS et al. v. BALDWIN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Smith County; J. R. Warren, Judge.
Suit by A. P. Baldwin against R. F. Williams and others; certain persons intervening. With this the suit of R. W. Patterson against A. P. Baldwin was consolidated. From the judgment, Williams and others and Patterson appeal. Affirmed.
On September 29, 1915, the Davis Construction Company, a copartnership, entered into a written contract with A. P. Baldwin to provide all material and perform all the work for the erection of a two-story brick apartment house according to certain plans and specifications, for which A. P. Baldwin was to pay them $10,250. It was provided in the contract: (1) That no alterations should be made in the work except on the written order of the architect; (2) that the sum contracted to be paid by A. P. Baldwin to the construction company was only to be paid on the certificates of the architect, and no certificate was to exceed 75 per cent. of the cost of labor and material satisfactorily in place in the building at the time of the issuance of such certificate; and (3) that, should the construction company at any time fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements in said contract, such failure being certified by the architect, the said A. P. Baldwin should be at liberty, after ten days' written notice to the contractors, to provide any such labor and material necessary to complete the building according to the plans and specifications. The construction company executed a bond on September 29, 1915, with three sureties, who are the appellants herein. The bond was in the sum of $5,000, payable to A. P. Baldwin "and to such persons, firms and corporations who may furnish material for or perform labor on the work, building or improvement contemplated in the contract." The condition of the bond reads:
"That said Davis Construction Company shall well and truly keep, perform and fulfill all and every the covenants, conditions, stipulations, and agreements to be kept, performed, and fulfilled by them as set forth and contained in the contract entered into by and between the Davis Construction Company, as contractors, and A. P. Baldwin, as owner, dated September 29, 1915, for the construction of the work, building, or improvement mentioned in the said contract, and shall repay to A. P. Baldwin, owner, all sums of money which he may pay to other persons on account of work and labor done or material furnished which the Davis Construction Company may fail to do or furnish in accordance with said contract, and shall pay to A. P. Baldwin, owner, any and all damages he may sustain, as provided in said contract, or which he may be entitled to under the terms of said contract by reason of the malperformance or nonperformance on the part of the Davis Construction Company, contractors, of any of the covenants, agreements, and stipulations in said contract on their part to be kept and performed."
The bond further provides:
"This bond is made for the use and benefit of all persons, firms, and corporations who may furnish any material or perform labor for or on account of said work, building, or improvement, and they and each of them are hereby obligees hereunder the same as though their own proper names were written herein as such, and they and each of them may sue hereon."
This bond was not filed in the county clerk's office.
In October, 1915, the Davis Construction Company began the erection of the building, and on January 22, 1916, refused to further proceed with the erection and completion of the building, which fact was certified on January 31, 1916, by the architect superintending the erection of the building. On January 31, 1916, the construction company and the sureties on their bond were each notified of such failure on the part of the construction company, and that A. P. Baldwin would provide all labor and material necessary to complete the building as the construction company had contracted to do. After the notice A. P. Baldwin proceeded to and did furnish the labor and material necessary to complete the building according to the contract. Up to and including January 8th A. P. Baldwin had paid to the Davis Construction Company $4,853.80 on certificate of the architect, and such payments did not exceed 75 per cent. of the amount of labor and material satisfactorily in place in the building according to the certificate of the architect at the time of the issuance of the certificate. However, on January 8, 1916, there had been labor and material to an amount exceeding $1,000 satisfactorily placed in the building by subcontractors which was unfinished on said date and not covered by the certificate of the architect; and on January 19th there was labor and material satisfactorily in place in the building and not covered by the certificate of the architect to an amount of $2,940.45, including the amount of over $1,000 in the building on January 8, and up to January 19, 1916, A. P. Baldwin paid to the following persons who had furnished labor and material to the construction company sums indicated below:
On Jan. 11, 1916, R. W. Patterson
for lumber....................... $ 500 00
On Jan. 15, 1916, pay roll........ 120 00
On Jan. 19, 1916, Victoria Lumber
Co. for millwork................. 1,482 85
________
Total ...................... $2,102 85
No certificate of the architect was issued for the payments covered by the $2,102.85. After January 19th and prior to January 22d there had been labor and material satisfactorily in place in the building amounting to more than $200, and on January 22d A. P. Baldwin paid for the Davis Construction Company the weekly pay roll of $142. Thereafter, on January 29th, there was labor and material satisfactorily in place in the building to an amount equal to $300, and on that date A. P. Baldwin paid for the Davis Construction Company the pay roll of $146.85. At no time did A. P. Baldwin pay to or for the Davis Construction Company more than 75 per cent. of the amount of labor and material satisfactorily in place in the building. After the default of the construction company A. P. Baldwin was compelled to pay for labor and material necessary to complete the building according to the plans and specifications $4,279.56, making the total amount paid by ...
To continue reading
Request your trial
-
Willis v. First Nat. Bank of Burkburnett
...so will not be reviewed here unless it has been properly excepted to by one who has not waived his right to object. Williams v. Baldwin (Tex. Civ. App.) 202 S. W. 975; Scott v. F. & M. National Bank (Tex. Civ. App.) 66 S. W 485. Even if there is another suit for an accounting pending betwee......
-
Williams v. Baldwin
...the contract —and in contravention of the terms and specifications of the bond, such payments did not release the sureties on the bond. 202 S. W. 975. The provisions of the plans and specifications which plaintiffs in error claim were violated "That the sum to be paid by the owner to the co......