American Surety Co. v. Camp

202 S.W. 798 | Tex. App. | 1918

Lead Opinion

WILLSON, C. J.

(after stating -the facts as above). [1, 2] The assignments based on the action of the court in overruling appellant’s motion for a continuance of the cause are overruled. The grounds of the motion were: (1) Surprise because of the claim, made for the first time in the amended petition, of a right in appellee to recover of Nichols as liquidated damages $15 a day for each day after July 12, 1913, the work of making the basement dry remained incomplete; and (2) the absence from the court of Nichols, who, appellant alleged, had promised to be present, and who, had he been present, would have testified, appellant alleged, that the fact that the basement was not dry was not due to a failure on his part to comply with his undertaking, but to “alterations and changes and openings made in the basement” by appellee or his tenants. The record makes it clear enough that the court did not find anything in appellee’s favor on account of delay in completing the work Nichols undertook, but predicated his judgment on a finding that appellee was damaged in the amount, to wit, $1,046, he had to pay Arendt to do the work Nichols engaged, but failed, to do. That being true, had the court erred in overruling the motion on that ground, the error would appear to be harmless. As to the other ground of the' motion, it does not appear, from the bill of exceptions or otherwise, that any diligence whatever was used to procure the testimony of Nichols. Mayer v. Duke, 72 Tex. 445, 10 S. W. 565.

[3, 4] Appellant objected to the admission in evidence of the letters referred to in the statement above. The grounds of the objections were: To appellee’s letter of May 13th to the Title Guaranty & Surety Company, that it was not the original, but a carbon copy; to the reply of the Guaranty & Surety Company to that letter, that it “had not been properly proved”; and to the reply of appellant to the letter, that it was “not the best evidence of the contract entered into between the parties.” In the letter last referred to appellant in effect admitted that it had assumed the obligation the Title Guaranty & Surety Company incurred when it executed the bond. If the admission was not the best evidence of the fact that appellant had assumed the obligation, it was nevertheless competent evidence thereof. If it was error (17 Cyc. 411) to admit either of the other letters in evidence, it was'not such error as entitled appellant to a reversal of the judgment.

[5] It is insisted that the court erred when he admitted the bond in evidence over appellant’s objection that its execution by the Title Guaranty & Surety Company had not been proven. Appellant testified that Capt. J. E. Ducy, appellant’s general manager for Texas, admitted to him that appellant had assumed the Title Guaranty & Surety Company’s contract with appellee, and negotiated with him as to the loss he claimed he had suffered by the breach of the contract by Nichols. A like admission was contained in appellant’s letter of May 22d referred to above. As the bond objected to was the only contract existing between the Title Guaranty & Surety Company and appellee, we think the admissions were referable to it, and authorized a finding, as against appellant, that the Title Guaranty & Surety Company executed the bond as alleged in appellee’s petition.

Other objections are urged to the judgment, but we think they also are not tenable.

The judgment is affirmed.

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Lead Opinion

The assignments based on the action of the court in overruling appellant's motion for a continuance of the cause are overruled. The grounds of the motion were: (1) Surprise because of the claim, made for the first time in the amended petition, of a right in appellee to recover of Nichols as liquidated damages $15 a day for each day after July 12, 1913, the work of making the basement dry remained incomplete; and (2) the absence from the court of Nichols, who, appellant alleged, had promised to be present, and who, had he been present, would have testified, appellant alleged, that the fact that the basement was not dry was not due to a failure on his part to comply with his undertaking, but to "alterations and changes and openings made in the basement" by appellee or his tenants. The record makes it clear enough that the court did not find anything in appellee's favor on account of delay in completing the work Nichols undertook, but predicated his judgment on a finding that appellee was damaged in the amount, to wit, $1,046, he had to pay Arendt to do the work Nichols engaged, but failed, to do. That being true, had the court erred in overruling the motion on that ground, the error would appear to be harmless. As to the other ground of the motion, it does not appear, from the bill of exceptions or otherwise, that any diligence whatever was used to procure the testimony of Nichols. Mayer v. Duke, 72 Tex. 445, 10 S.W. 565.

Appellant objected to the admission in evidence of the letters referred to in the statement above. The grounds of the objections were: To appellee's letter of May 13th to the Title Guaranty Surety Company, that it was not the original, but a carbon copy; to the reply of the Guaranty Surety Company to that letter, that it "had not been properly proved"; and to the reply of appellant to the letter, that it was "not the best evidence of the contract entered into between the parties." In the letter last referred to appellant in effect admitted that it had assumed the obligation the Title Guaranty Surety Company incurred when it executed the bond. If the admission was not the best evidence of the fact that appellant had assumed the obligation, it was nevertheless competent evidence thereof. If it was error (17 Cyc. 411) to admit either of the other letters in evidence, it was not such error as entitled appellant to a reversal of the judgment.

It is insisted that the court erred when he admitted the bond in evidence over appellant's objection that its execution by the Title Guaranty Surety Company had not been proven. Appellant testified that Capt. J. E. Lucy, appellant's general manager for Texas, admitted to him that appellant had assumed the Title Guaranty Surety Company's contract with appellee, and negotiated with him as to the loss he claimed he had suffered by the breach of the contract by Nichols. A like admission was contained in appellant's letter of May 22d referred to above. As the bond objected to was the only contract existing between the Title Guaranty Surety Company and appellee, we think the admissions were referable to it, and authorized a finding, as against appellant, that the Title Guaranty Surety Company executed the bond as alleged in appellee's petition.

Other objections are urged to the judgment, but we think they also are not tenable.

The judgment is affirmed.

On Appellant's Motions for Rehearing and for Additional Findings. The contention, made when the record was first before us, that the judgment was excessive, is vigorously renewed in the motions. The contention was and is based on a stipulation in the bond that it should "terminate," quoting, "on the 1st day of August, 1914, on which date this bond shall become null and void," and on testimony showing that part of the work done by Arendt in making the basement dry as Nichols had agreed to make it was done after August 1, 1914, and that part of the sum paid him by appellee for doing such work was paid to him after that date. We did not think that was a reason why appellee should not recover as he did, and do not yet think so. What Nichols undertook to do, and appellant guaranteed he would do, was to furnish the material and do the work necessary to be done to make the basement dry and to keep it so for a period of one year. Nichols having failed to do that, appellee was entitled to recover of him the sum it was reasonably necessary to expend to have it done, to wit, $1,0416, as shown by the testimony, without reference to whether the work was done and the expenditure made before August 1,1914, or not, and was entitled to recover of appellant the $978 it bound itself to pay in the event of such failure on Nichols' part.

The motions are overruled.

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Rehearing

On Appellant’s Motions for Rehearing and for Additional Findings.

[6] The contention, made when the record was first before us, that the judgment was excessive, is vigorously renewed in the motions. The contention was and is based on a stipulation in the bond that it should “terminate,” quoting, “on the 1st day of August, 1914, on which date this bond shall become null and void,” and on testimony showing that part of the work done by Arendt in making the basement dry as Nichols had agreed to make it was done after August 1, 1914, and that part of the sum paid him by appellee for doing such work was paid to him after that date. We did not- think that was a reason why appellee should not recover as he did, and do not yet think so. What Nichols undertook to do, and appellant guaranteed he would do, was to furnish the material and do the work necessary to be done to make the basement dry and to keep it so for a period of one year. Nichols having failed to do that, appellee was entitled to recover of him the sum it was reasonably necessary to expend to have it done, to wit, $1,046, as shown by the testimony, without reference to whether the work was done and the expenditure made before August 1,1914, or not, and was entitled to recover of appellant the $978 it bound itself to pay in the event of such failure .on Nichols’ part.

The motions are overruled.