Wright v. A. G. McAdams Lumber Co.

• Decision Date: 30 November 1921
• Docket Number: (No. 261-3477.)
• Citation: 234 S.W. 878
• Parties: WRIGHT et al. v. A. G. McADAMS LUMBER CO. et al.
• Court: Texas Supreme Court

234 S.W. 878

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

(No. 261-3477.)

Commission of Appeals of Texas, Section A.

November 30, 1921.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by the A. G. McAdams Lumber Company and others against L. B. Wright and others. Judgment for plaintiffs was reformed and affirmed by the Court of Civil Appeals (218 S. W. 571), and defendants bring error. Reversed and rendered in part, and in part affirmed.

Bean & Klett, of Lubbock, for plaintiffs in error.

Percy Spencer, Roscoe Wilson, M. Fulton, J. E. Vickers, and W. F. Schenck, all of Lubbock, for defendants in error.

SPENCER, J.

This suit was instituted by defendants in error to recover of plaintiffs in error, L. B. Wright and H. K. Porter, as sureties, upon a contractor's bond for materials furnished the contractors. Recovery was also asked against R. D. Benson, owner, and L. R. Hensley and G. L. Phillips, contractors.

In his pleadings, Benson asked judgment over against the sureties for any such sum as might be recovered against him, for reasonable attorneys fees and for $445 liquidated damages for delay.

The terms of the building agreement between the contractors and the owner provided in substance that in consideration of the sum of $8,750, the contractors were to furnish material and labor for and to erect and complete by September 1, 1917, a 1½-story frame residence, a 2-story frame garage, and other work, in accordance with the plans, specifications, and drawings of the architects.

Plaintiffs in error deny liability upon the ground that the contract actually entered into was different from the one presented to them in connection with the execution of the bond in this, the contract representing the final views of the party contained the following letter, which was absent from the contract at the time they executed the bond:

                                            "April 28, 1917
                

"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 dimension, you are to pay for the cost of sizing same, and the loss, if any, caused by such work.

                  "Yours very truly,           L. R. Hensley
                                              "G. L. Phillips
                

"It is hereby agreed and understood that the price for all tile work was estimated at $0.50 per sq. ft. Should this tile cost more or less than $0.50 per sq. ft. addition to or reduction from the contract price will be so made.

                                                     "G. L."
                

The jury found that this letter was made a part of the contract between the owner and contractor without the knowledge or consent of the sureties after the bond was signed by them, and that they refused, after having learned of the letter, to have anything to do with the contract.

The trial court rendered judgment against plaintiffs in error and G. L. Phillips in favor of the various materialmen for the respective amounts found to be due by the jury, and also rendered judgment in favor of the owner against the sureties and contractor for $30 delay, which amount was credited upon the amount which the owner admitted he owed under the contract. A. M. Hensley having previously been adjudged a bankrupt, judgment was rendered that the parties take nothing as against him.

Upon appeal, the honorable Court of Civil Appeals for the Seventh Judicial District concluded that, as the stipulations contained in the letter of April 28 were within the terms of the act of the Legislature of March 31, 1915, chapter 143, section 2 (Vernon's Ann. Civ. St. Supp. 1918, art. 5623a) which provides "that no change or alteration in the plans, building, construction or method of payment shall in any way avoid or affect the liability on said bond," there was no new or different contract within the purview of the statute, and that therefore the sureties were not released. That court also held the sureties liable to the owner for $200 attorney's fee and $455 damage for delay. The judgment was reformed and affirmed in conformity with this holding. 218 S. W. 571.

This section of the Commission in making its recommendations to the Supreme Court in the case of Williams v. Baldwin concluded that the provision of the statute heretofore referred to was unconstitutional as an interference with the right of freedom to contract. The judgment recommended was adopted by the Supreme Court. 228 S. W. 554. As that case turned upon the constitutionality of that provision of the act, the adoption of the judgment recommended by the commission is indicative that the Supreme Court approved the holding of the Commission that the provision referred to is...