Wright v. Meyer

• Decision Date: 21 March 1894
• Parties: WRIGHT v. MEYER.
• Court: Texas Court of Appeals

25 S.W. 1122

WRIGHT v. MEYER.

Court of Civil Appeals of Texas.

March 21, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by John Meyer against W. B. Wright. From a judgment for plaintiff, defendant appeals. Reversed.

Denman & Franklin and R. L. Summerlin, for appellant. C. A. Keller, for appellee.

JAMES, C. J.

John Meyer had erected a building in San Antonio for W. B. Wright, and, when close upon completion, Wright (the defendant herein), under a clause in the contract which enabled him to do so, took possession of the premises, and completed it. The balance unpaid of the contract price was $6,679.06, and the suit was to recover same, and to have it declared a lien on the premises, and foreclosed. After certain exceptions to plaintiff's pleading, and a general denial, the defendant set up: (1) That plaintiff agreed to complete the building, in every respect, by August 1, 1890, and in default thereof to pay defendant $20 per day for each day's delay, and that plaintiff had not completed it by April 1, 1891, when defendant sequestrated the building, and proceeded to complete the same, which required until May 1, 1891; making a delay after the date fixed for completion of nine months, for which defendant asked to be allowed $5,400. (2) That plaintiff violated the contract in finishing the interior walls, to defendant's damage $600, and that he placed worthless brick in the building, contrary to instruction of the architect, to defendant's damage $2,000, and that defendant expended the sum of $830, after taking possession, to complete the building. These several sums defendant pleaded, and asked judgment for. The verdict was for plaintiff, in the sum of $6,272.60, declaring the same a builder's lien on the property. To avoid the effect of the contract liability for delay, the plaintiff alleged that between March 1, 1890 (the date of the contract), and August 1, 1890 (the date fixed for completion), there were 10 rainy days, which prevented work on the building; that the building had been delayed 67 days by defendant and the architect, in obliging plaintiff to delay the construction thereof in the attempt to get a certain stone, known as "Braden stone," which the contract specified should be used in the building, which it was impossible to get, and no diligence could procure; that, after said delay of 67 days, defendant and the architect compelled plaintiff to change the stone to stone from a distant quarry, at Kerrville, and, notwithstanding plaintiff used all possible diligence to get such stone, he was delayed the further time of 34 days. Plaintiff also alleged that the contract called for Laredo brick for certain parts of the building, but during the work plaintiff was required by defendant to change same to another brick, known as "Alvord brick," whereby plaintiff lost 31 days more, waiting for the Alvord brick, and that at the end of the 31 days defendant again changed his mind, and required plaintiff to send for Laredo select brick, whereby he was delayed 35 days more, and that such changes were exacted at such time that work had to cease on the building, and that he was necessarily and unavoidably caused loss time for said periods. He also claimed to have been delayed 16 days by the absence of the architect, and 12 days by delay in the plumbing work, which was not a part of his contract, and which was not put in at the proper time. The evidence of plaintiff shows that at the time the contract was entered into the Braden stone was obtainable, and for some time afterwards; that it was not needed until the brick foundations were laid; and that at that time plaintiff was unable to get the stone, he having made no arrangements, and done nothing towards securing it. The foundation was finished about April 19th. We find from an examination of the record that the failure of plaintiff to get this stone was not due to any act of the defendant. It appears also, that it was on or about May 17th that plaintiff's brother, who acted for him, consulted defendant about the matter, and offered to put in any other stone he might choose, and offerred to use the Kerrville stone, which defendant consented to. Upon this state of facts, it is contended by appellant that he was not legally liable for the delay growing out of his inability to obtain said stone. The court gave, at request of defendant, the following instruction: "The jury are instructed that the contract in evidence bound plaintiff to furnish the material and construct the building, * * * and the contract further provides that a part of the building should be constructed of the Braden blue stone mentioned therein, and it was the duty of the plaintiff to procure said stone, and not the duty of the defendant to procure the same; and you are further charged that there is no evidence in this case tending to show that the defendant Wright was in any way chargeable with any delay in the construction of the building which may have been caused by the failure of plaintiff to secure said Braden stone. And you are instructed that any delay resulting from the failure to procure the Braden stone is no excuse, in law, to relieve plaintiff from paying the damages he agreed to pay defendant for the delay in the construction of the building after the 1st day of August, 1890."

The court recognized the legal liability of plaintiff for the delay aforesaid, and the right of defendant to an abatement of the contract price accordingly, upon the undisputed evidence before him. If the judge was right in this, the verdict is wrong, as it is plain the deduction was not allowed by the jury. And the verdict, in this particular, may be due to another charge given by the court, of contrary import, whereby they were instructed that if they believed that plaintiff constructed and completed the building for the defendant in compliance with the plans and specifications in evidence, and if they believed, further, from the evidence, that although the building was not completed on the 1st day of August, 1890, as required by the contract, "the plaintiff is not chargeable with the delay, if any, in constructing and completing said building, you will find a verdict in favor of the plaintiff for such amount of balance as you believe to be due under said contract." Our view of the law on the question presented is that the impossibility of getting the stone, to be an excuse for the delay connected with it, must have existed at the time the contract was entered into. A mutual mistake of fact would then be presented, which would relieve either party. The evidence shows that no such impossibility existed at that time. The inability of plaintiff to obtain the stone is due to causes that arose afterwards, without any agency or default on the part of defendant, and in some measure, if not altogether, by default of the plaintiff to take steps in time to secure the supply of stone. Plaintiff may have made a prolonged and honest effort to secure it, notwithstanding the difficulty or apparent hopelessness of doing so; but the authorities are clear that this, alone, would not avail him, as a defense for a nonperformance of his contract. Yetter v. Hudson, 57 Tex. 613; Dermott v. Jones, 2 Wall. 1. There was no effort on the part of appellee to have the provision for damages for delay treated as other than liquidated damages. The contract in this case expressly provided...