*2 he had been sued. The capacity PRESLAR, C.J., F. Original Before STEPHEN Petition filed Fourth Amended OSBORN, JJ. Deceptive and WARD limited the Trade May (1974). Nevertheless, Appellants’ point of error are de- 1. All of the we consider each why specify Fambrough Wagley, holding reason fective failure under the Appellate (1943). Texas Practice court erred. 169 S.W.2d 478 Tex. p. 1.57 at Section 1.51 Manual Section only Practice Act claims Cameo and elim- and for the purpose of harassment and to claims Bradley inated such although remand on the issue of Bradley’s dam- party defendant as he remained to other ages. nothing find in the transcript We claims. the motion presented indicate was ever or acted on the trial court. noth- 3, 1980, Cameo March On Bradley *3 for ing presented event, review. In any summary judgment, for moved the latter did not assert the motion the suit came was not asserting that he individually liable terms of 17.50(c), within the Section and we because the construction contract showed grant the relief sought could not even if we an officer of the signed corporation. he as agreed that the motion should have been Bradley filed a On March counter- of sustained. Point Error No. Three is 17.50(c) of under Section the Decep- claim overruled. Act to Trade Practice tive recover attor- Subsequently ney’s Appellees fees. filed a The last three of error assert as to Bradley for non-suit only, motion entering the trial court erred in 30, granted April 1980. Ap- which was Appellees for rather than Cameo and in special filed pellees exceptions then to motion denying Cameo’s for remittitur. urging counterclaim Bradley’s that there first contend Appellants that Appellees Trade Practice Deceptive was no Act claim to recover were not entitled under the De him at the against time he pending filed his ceptive Trade Practice Act because they court counterclaim. after hearing give requisite failed to notice of their sustained them exceptions and ordered 17.53(a) claim under Section the 1973 stricken. the counterclaim parties Act. All agree version of the that that the trial We conclude breach the claimed of the 1976 contract ordering the erred in counterclaim stricken. would be controlled the 1973 provisions Appellees by The fact that plead amended required The notice of the Act. under Sec all ing against eliminated claims Bradley 17.53(a) 1973 applied of the Act tion to Deceptive Trade Practice Act under the brought class suits as actions under Section them of all totally liability relieve to act, 1973 17.51. Under the no notice was original pleadings if which him the asserted brought required for suits under Section groundless “was brought such a claim provided general which 17.50 for indi faith, brought for the purpose or bad Ladd, King v. vidual consumers. 624 17.50(c) only requires harassment.” Section (Tex.Civ.App. 1981, 195 Paso S.W.2d no — El a such suit to be bring that one liable for writ), Appellants which rely, was de and court attorney’s fees costs—not that the 1977 cided under amendments to the such suit to a they prosecute conclusion. If applicable Act and it is not to the facts in attorney’s fees in Bradley incurred answer this case. defending groundless a ing and and bad suit, brought for one the purpose faith or Next, Appellants assert that the tri harassment, legislature intended that he granted have al court should their motion While might those costs. the costs recover Appellees $124,055.26 judgment. for a taken, non-suit was be minimal since provided pay that total on a contract right had a to recover whatev Bradley still $165,000.00. The jury ment of found the for defense of er he incurred this claim cost the labor materials which value of was in the as to him category if the suit $200,000.00. In their Cameo furnished Points of Error noted in the statute. One brief, acknowledge that Appellees it was sustained. and Two are agreed that the residence stipulated and point of error

The next asserts the substantially completed by Cameo. in failing grant court erred to Brad in such a case the Normally, measure of summary judgment. ley’s motion The damages price, is the contract less the rea this court to argument urges hold the suit remedying the defects or sonable cost Bradley was brought bad faith way as to make the omissions such

13 building by single the contract. Atkinson The Appellees cross-point conform Bros., (Tex.Comm’n 270 S.W. 848 v. Jackson court erred in failing the trial assert App.1925). under the damages De them treble award Act. The Practice record ceptive Trade remedying the cost of found preserved that they have making not reflect necessary repairs does defects $25,400.00. right complain construction was their for defective Thus, paying appears Independent it contrac Westwood School entered. making $25,- repairs Inc., Products, Clay tor v. 604 District Southern have received a home for Appellees 400.00 1980, (Tex.Civ.App. Tyler writ 511 S.W.2d — initially pay contracted to they Holmes, n.r.e.); Rutherford v. ref’d $165,000.00. they should be sum S.W.2d — Austin $15,- pay the additional sum of required Dietz, dism’d); Dietz writ unjust any enrichment. to avoid 544.74 1976, writ). Paso It (Tex.Civ.App. — El *4 not be liable for But, payment should they Appellees to note their was incumbent $200,000.00which sum of was found of the to judgment trial court the objection in the to the reasonable be value of the do that. The cross- They entered. paid for materials and furnished and labor point is overruled. sum exceeds that the con since by Cameo judgment 434 be Rule should en- Under house. This for the issue was price tract Appellees that recover from providing tered Montclair Corporation the court before $15,- $25,400.00, less an offset of Paving Co., Inc., Cameo Lightfoot N. Earl $9,855.26. 544.74, recovery net for a — Houston judgment n.r.e.), denying Harry and Chief the part Justice Bell writ ref'd That majority the said: his is writing for on counterclaim re- Bradley relief to us, the trial In cited and and remanded court. been in our versed No case has none, judgment we have the of the respects research found trial extensive other all if there has holds that been which is affirmed. performance the contractor is substantial contract, on recovery the restricted MOTION FOR ON OPINION price, including the contract recovering REHEARING the any, less reasonable cost of profits, if have filed motion for Appellees The building in completing the accordance point error, they the first rehearing. In The cases do allow with the contract. in allowing erred Cameo that we assert contract for on substantial recovery the Company an offset in the Construction we but think the contrac- performance; $15,544.74. The Appellees al- amount quantum sue on elect to meruit may tor pleadings they that their amended leged value of the reasonable benefits for the owner, and on the the value not to materialmen paid conferred had subcontractors price, and the owner exceed the contract for work done or the sum damages against the con- may his recover under their contract with supplied materials fully performing. for not tractor Company. The final Construction Cameo that Cameo take provided noth- Therefore, we conclude that the trial court permitted Mr. and ing by have Cameo to the its counterclaim should recover price between the contract Campbell. and court found difference Mrs. actually paid and the amount Campbell the amount Mrs. had no further Mr. that required repairs to make necessary pay- the contract to make obligation Appellants acknowledged in the house. impliedly found that ments Cameo that there can be no review argument oral had all or more Campbells than denial of court’s their claim for of the for in the construction provided total sum a statement of without facts. remittitur contract. we overrule Points of Accordingly, Error making in part pay sustain that Six and Point of We conclude Four and Five. and the Error No. materi- to the subcontractors ment almen, Campbell Mrs. Mr. and would be credit the sums paid

entitled to- owed to amount Cameo

ward the total Con- Company. Kocher v. Mayberry,

struction 342, 39 (1897, S.W. 604 Tex.Civ.App.

writ). made to payments Cameo and subcontractors materialmen ex- price for

ceed the contract the house.

Therefore, grant Appellees’ we Point of affirm part

Error No. One provides that Mr. and Mrs.

Campbell have and recover from Cameo Company $25,- Construction sum of DeGuerin, Houston, for appellant. Dick 400.00. Center, Warren, appellee. Bill Appellees’ second and third have considered been and they are McKAY, Justice. overruled. from a appeal

This conviction for deliv- substance. Trial ery of a controlled jury. Punishment assessed before at *5 $5,000 and a years confinement fine. ten ground sole error Appellant’s asserts the trial court committed fundamental charge in the court’s because it autho- a theory pleaded conviction rized indictment. reads, part, The indictment “did then JACKSON, Cegail Appellant, unlawfully, intentionally, there Vivian knowingly deliver to Curtis L. Beckham a substance, phenmetrazine to-wit: controlled Texas, Appellee. The STATE delivery was the said then and there by the actual accomplished 12-81-0136-CR. transfer of No. said Vivian Cegail from phenmetrazine Jackson Appeals Texas, Court ....”1 Beckham to Curtis L. Tyler. portion of the court’s The definitional “ 12, 1982. Aug. ‘Deliver’ or charge ‘delivery’ reads: means transfer from one the actual or constructive 3, 1982. Nov. substance, another of controlled person to Discretionary Review Refused is an agency or not there relation- whether portion of charging charge ship.” “Now, find from you if reads: evidence doubt that a reasonable on or about beyond May, day Shelby County, 21st defendant, Texas, Cegail Vivian Jack- son, intentionally and knowingly deliver substance, to-wit, phenmetra- a controlled Beckham, zine, alleged L. as in the Curtis indictment, will find you guilty then her as charged.” emphasis 1. All is the Court’s unless otherwise noted.