Wright v. A. G. McAdams Lumber Co.

• Decision Date: 14 January 1920
• Docket Number: (No. 1589.)
• Citation: 218 S.W. 571
• Parties: WRIGHT et al. v. A. G. McADAMS LUMBER CO. et al.
• Court: Texas Court of Appeals

218 S.W. 571

WRIGHT et al. v. A. G. McADAMS LUMBER CO. et al.

(No. 1589.)

Court of Civil Appeals of Texas. Amarillo.

January 14, 1920.

Rehearing Denied February 4, 1920.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Suit by the A. G. McAdams Lumber Company and others against L. B. Wright and others. From judgment for plaintiffs, defendants appeal. Reformed and affirmed.

Bean & Klett and Roscoe Wilson, all of Lubbock, for appellants.

M. Fulton, Percy Spencer, J. E. Vickers, W. H. Bledsoe, and W. F. Schenck, all of Lubbock, for appellees.

HALL, J.

The appellee A. G. McAdams Lumber Company, a corporation, filed suit in the district court of Lubbock county against L. R. Hensley and G. L. Phillips, as contractors under the firm name of Hensley & Phillips, and against R. D. Benson, as the owner of certain buildings, including, as defendant, L. B. Wright and H. K. Porter as sureties upon the contractor's bond of Hensley & Phillips, to recover a balance of $2,727.85, alleged to be due appellee for material furnished the contractors to construct a residence, garage, and barn for the owner, R. D. Benson. It is alleged that the contract made by Benson bound the contractors to complete the work at a cost of $8,750 on or before September 1, 1917. T. T. Fisher, as a subcontractor, filed suit in the same court upon the same contract, to recover a balance of $535 alleged to be due him for plastering done for said contractors. The Cicero Smith Lumber Company, claiming a balance of $269.35 for material furnished; J. B. Pryor a subcontractor, claiming a balance of $656.75 for concrete work; Nelson & Wilcox, subcontractors, claiming a balance of $184.40 for painting; O. G. Kershner, a subcontractor, claiming a balance of $466.44 for brick and tile work; and Bush Bros., a partnership, claiming a balance of $415.95—all filed their pleas of intervention. The owner, Benson, by cross-action, prayed for penalty of $445 damages for delay in completing the work and $250 for his attorney's fees. The total amount of claims sued for by plaintiffs and interveners is $5,859.74. The suits were consolidated. Plaintiffs and interveners alleged, in substance, that on April 28, 1917, the owner, R. D. Benson, and the contractors, Hensley and Phillips, entered into a written contract, whereby the latter obligated themselves to construct a residence, garage, and barn for the owner, according to certain plans and specifications, at a price of $8,750, and to complete the work by September 1, 1917; that on the same date the sureties, L. B. Wright and H. K. Porter, executed a bond in the penal sum of $3,364, payable to the owner and those who may furnish labor and material, conditioned that the contractors will faithfully perform said contract and promptly pay and discharge all indebtedness that may be incurred by the said Hensley and Phillips in carrying out the said contract. Copies of the contract and bond were made exhibits to the pleading. The defendant Hensley filed a suggestion of his adjudication in bankruptcy. The defendant Benson answered, alleging that the premises in question had likewise been his homestead; that no lien had been created to secure any of the claims sued upon, and admitted that he lacked $1,187.56 paying the contractors for the work done, and claimed by way of cross-action the said sum of $445, as penalty for 91 days' delay in completion of the work, together with his attorney's fees. He further alleged that the contract and bond sued upon did not represent the contract and bond that were actually made, but were wholly different from the contract and bond executed by the parties originally. The sureties, Wright and Porter, allege that the contract and bond sued upon were not the instruments executed by the owner and the contractors, specifically alleging:

"(9) That the sureties say that the contract that was entered into between the parties with reference to the construction and completion of the buildings mentioned in said Exhibit A without the knowledge or consent of these sureties materially differ from said Exhibit A sued on, in that the real contract for the construction and completion of said buildings obligated the contractors to award the painting to Mr. Nelson, the plumbing to Bush Bros., the lumber and mill work to the Cicero Smith Lumber Company or the McAdams Lumber Company, and further obligated the contractors to begin work on the garage, not later than Monday, April 30th, and push same forward to completion, or have same so it can be occupied as a place of residence in two weeks from above date; also to construct the stable as promptly as possible.

"(10) That these sureties say that they are not liable on the contract set up in Exhibit A or the bond given to secure it, and made a part thereof, in that the contract set up in said Exhibit A was materially altered, and an entirely different building contract entered into by the other parties hereto, by which the contractors, for a valuable consideration, assumed and promised to discharge the additional burdens and liabilities mentioned in the preceding paragraph, and these sureties say that these material alterations and additional obligations were incurred and entered into by and for the other parties hereto without the knowledge or consent of these sureties before delivery or acceptance of the contract or bond, and before any labor or material was furnished; that in fact these sureties have never signed any bond or obligated themselves in any way to become liable, as sureties or otherwise, on the contract, that was really made between the parties, and have never authorized, ratified, or acquiesced in such contract or bond, and the contract and bond sued on are, so far as these sureties are concerned, wholly void and without consideration to support it, whereby such sureties are not liable on the contract or bond sued on."

Upon special issues submitted to the jury, findings were returned, stating the amount due the several claimants who furnished material and labor. The jury further found that $200 was a reasonable attorney's fee; that the letter of April 28, 1917, signed by the owner and contractors, and made a part of the contract, was without the knowledge and consent of the sureties, and after the bond had been signed by them; that said sureties refused to have anything to do with the contract and bond after they learned of said letter; that by reason of the acts of the owner in making alterations the completion of the buildings was delayed 85 days; that the premises in question constituted the homestead of the defendant Benson. Judgment was rendered in favor of plaintiff and intervener against Phillips, one of the contractors, and Wright and Porter as sureties, for the several amounts found to be due. Benson was denied recovery of the attorney's fees, but was allowed $30 in the way of penalty for delay, which was credited on the amount admitted in his pleadings to be due the contractors. It was ordered that execution first issue against Benson in favor of plaintiffs and interveners, prorating the amount due from Benson upon the several amounts recovered by them, and that such sums, when collected, should be credited on the judgment rendered against the contractors and sureties. It appears that after the contract and bond had been signed and on the same day the following instrument was executed:

                          "Lubbock, Texas, April 28, 1917
                

"Mr. R. D. Benson, Lubbock, Texas—Dear Sir: In connection with the execution of my contract with you, for the construction of your residence, garage, stable, etc., I hereby agree to award the following work to the respective subcontractors as noted below:

"Painting to Mr. Nelson; plumbing to Bush Bros.; lumber and mill work to Cicero Smith or McAdams Lumber Co.

"I further agree to begin work on the garage not later than Monday, April 30th, and to push same forward to completion, or to have same so as it can be used as a place of residence in two weeks from above date. Also to construct the stable as promptly as possible. In connection with the shingles for garage, if it becomes necessary to size these shingles to dimensions, you are to pay for the cost of sizing same and the loss, if any, caused by such work.

                     "Yours truly,            L. R. Hensley
                                              "G. L. Phillips
                  "It is agreed and understood that the price
                for all the tile work was estimated at fifty
                cents per square foot. Should this tile cost
                more or less than fifty cents per square foot
                addition or deduction from the contract price
                will be so made.                     G. L."
                

Benson testified with reference to the letter as follows:

"As to whether or not that letter was signed by me on the 28th after the bond was signed by the sureties, I will say that I do not think that I signed the letter at all, but the letter was delivered to me with the contract and bond. The sureties had already signed the bond at the time the letter was attached."

Hensley testified with reference to the letter as follows:

"The contract and bond were written up, and I carried it out and had the bond signed by Mr. Porter and Mr. Wright, and after it was signed up by Mr. Porter and Mr. Wright as sureties, I then carried it back to the office, and Mr. Benson and Mr. Weathers [the architect] had an extra letter written, asking to give the painting, etc., to certain contractors, and to buy the lumber from those yards they mentioned to you, and agree to finish the garage and barn in a certain length of time so he could use it as a residence. They asked me to sign that letter and make it a part of the contract, and I then signed it. The letter was then attached to the contract. The letter was written in duplicate, and signed in duplicate, and I kept one of the duplicates, and I believe Mr. Benson kept one, and that was all at the time that the contracts were delivered. * * * The contract and letter was delivered as one...