*1 (cid:127) composed tort, it is of a “In the case CO., Inc., finding CAPITOL et al. de- HOTEL v every ato fact essential wrong.” damages for the RITTENBERRY. is liable fendant . Judge No. 3501. Blythe, 12 Tex. In Phillio cause Hemphill aof the element discusses Appeals Court of Civil Amarillo. Texas. may says: to con- action, defined plaintiff “It March right well of sist as action, right.” injury to such as of Rehearing Sept. 9, 1931. Denied damages by evidence, the As shown upon cheek notation made incident re payment occurred was refused when county. authorities Randall sulted agree right depositor recover has a deposit and as a amount of his resulting in for the sue tort also rule juries refusal of the bank’s reason suffered pay sufficient excuse. his check without 35, page 697, “A it is said: In J. note 7 C. gives a to his creditor who check
trader neces- funds is almost has he a bank in which sarily injured the dishonor in his credit cheek, it of a similar slur the character is.a ut- is caused that which throwing doubt terance of slander solvency. re- is allowed to In he both cases damages proving without substantial cover damages.” any special Appellant State of Citizens’ cites the cases App.) Toyah Greenberg (Tex. Civ. Bank of Bank Citizens’ State
239 S. W. Toyah v. Goodman authority sustaining plea privi 231, lege. its cases, these As we understand point. not instituted The actions were dis makers of the draft which the bank drawn third honored. The drafts were parties, and, opinion, as stated in the no evi showing dence was introduced pass that a tres county had been committed Dallas appellee’s the cause action county. petition arose in Dallas Section of the statute is discussed Savage v. Burks 270 W. S. language: following 245, “A cause action, of statute, as that term is used in the venue plaintiff both of the consists injury right. and the to such embraces give to an entire state of facts rise. necessarily claim, comprises enforceable every prove or- fact which a must judgment.” der to obtain case, testimony going the instant injury standing financial
to show Forbess resid credit of came witnesses county in Randall where he resided county operated as a dealer in cattle. correctly We think court overruled the judgment privilege, plea of af- firmed.
HALL, J.| sitting. C. *4 superintend tions and continued to the con- completion, struction of said until its by Mayer premises, and that reason of the the de- be- company fendants hotel obligated pay plaintiff came 5 bound Simpson, Underwood, Johnson, Dooley & cent, per building, the cost of less Amarillo, appellants. credits, leaying admitted due of balance Amarillo, appellee. Guleke, $17,187.75, security plain- Stone & as therefor tiff asserted a constitutional lien mechanic’s petition on the lots described in the and claim- HALL, C. J. priority against ed the other defendants who Rittenberry, by Mayer, This is an archi- action interested a trust indenture lien tect, against Capitol Hotel R. Ed against property securing said a bond issue. Company, Inc., Hotel, Oapitol the owners pleadings defendants are volu- against the Mort- Illinois Standard minous will be stated when Company, gage Company, Chicago Trust proposi- in the consideration of the Amarillo, various Bank National Commerce of tions related thereto. against as owners of liens said hotel. proposition, Under first it is contended Plaintiff seeks to recover sustaining the court erred company balance al- demurrer to the first count of leged fee, the cross-ac- him to be due architect’s correctly tion. The substance count is prays lien for a foreclosure of his mechanic’s appellants’ brief, set out in from which we property on the the defend- all of *5 quote follows: as jury un- ants. was submitted to The ease n charge (a) in and resulted a ver- der a dict That when the defendant first judgment plaintiff favor of and came contact with proposal in connection against plaintiff company ques- for a balance due with the hotel to build the hotel in $16’,215.46. defendants, by tion, plaintiff skilled, The held himself out as a cross-action, sought proficient, experienced architect, pos- to recover of from his and damages carelessness, skill, resulting knowledge sessed want skill usual and of one neglig'enee perform- well and duties in the art of trained architecture. ance of found in favor of as architect. his (b) generally pos- That skilled architects and sess, service, professional as a of their art and cross-action. defendants on their ability advance, to estimate accuracy, plaintiff’s with petition reasonable the cost that of build- substance ings planned designed by April 8, 1926,hq and on and defendant them. contract, by entered into a the terms (c) written plaintiff professed That to have plaintiff of which undertook to furnish ability beginning at and the time of the defendants, sketches, working drawings, specifications frequent- of his relation with and superin- drawings, generally and detailed tend ly thereafter,, represented and claimed to de- work, all the and to audit accounts fendants that he was well able to estimate and about the construction of hotel build- accuracy with the cost of such hotel as he ing. plaintiff’s That fixed at fee might design plan and defendants. cent, equal per a sum of the cost to 5 (d) plaintiff, That defendants informed payable $1,800 building, hotel when the con- along, who understood all well knew and payable tract installments as the was let and the' remainder pri- the defendants considered it a matter of building progressed; sub- mary importance, upon which whole their ject proviso to the that if did the defendant depend, advance, course would to know in proceed building, not payment payment. cash with $1,800 then the certainty, with reasonable what the cost full and final constituted they be if would undertook to construct It is defendants hotel, plaintiff and well knew claim that his decided to and erect did erect said hotel n professional ability of such cost was the skill and to estimate building; corporation formed a moving consideration with Capitol Inc., Company, known as the to ing upon Hotel leading employment the defendants accomplish the erection of the hotel build- plaintiff act and serve as and architect conveyed corporation and to said the lots superintendent premises, plaintiff in the and building which the erected. That pro- well knew that the defendants would not corporation thereafter said made a contract except ceed with hotel venture in reliance said Company, partnership, with the Brennan upon an estimate the cost thereof. building for the erection of said on a cost- plus only plaintiff forthwith, (e) basis. That follow- That the contracts ever made and employment April 8, 1926, began plaintiff his executed between and either of the preparation specifications covering and for defendants his services as architect building, project said and after the of the in and about hotel creation said was the con- company, plaintiff’s April 8, 1926, hotel tract, which assumed con- tract of and the later and final special request, 30,1926, September at its instance and contract of wherein refer- upon specifica- contract, continued work and ence is made to the first and where- receipt request, knowing acknowledged the such well plaintiff in the defendants upon implicitly depend in that payment $1,800, that would him which recites and according regard regulate conduct or alter and their amend both first contract of tains desired to per- advice, thereafter, April 11 April 8th, far it about his and in so plaintiff, paid his defendants delivered he fee written, signed, ing agreement estimat- “that statement detailed then sets forth five-story building $374,729.00 erected for the labor the cost at event a plans party, specifications complete first furnished said material to build maximum in such event then and hotel. $12,250.- total sum fee 00 for architectural shall not exceed plaintiff (n) writ- said That when submitted fee under said estimate, exjdained ten defendants to.” April referred dated hereinabove defend- than amount that ran more on, counting $340,000, viz., (f) contract ants That at the time said last-named had been yet made, undecided fact that defendants were but due to that the excess was was whether venture, proceed plaintiff hotel liberal had made his written estimate hing- knew, that, fact, building well the-decision cost would estimate, mainly upon question substantially cost ed less than said sufficiency event, represented any financial resources of available the estimate ' figure cost. meet such outside maximum depend the defendants could (g) plans for hotel were after the said That proposed not, building six-story building would revised so meet to call for event, mortgage more than said written estimate. requirements com- the which pany proposed (o) rely was to the defendants underwrite ad- did That defendants issue, again con- plaintiff' bond cerned with building quiries, full vice and faith ultimate proceeded and had estimate of respect proposed to what ability fix confidence in cost, response in- they cost. That would not plaintiu represented claimed with the would not cost estimate, to defendants hut relied such advice ap- more than the amounts defendants had relying thereon, proceed con- propriated purpose, arranged borrow for that April, struction in the month *6 namely, $340,000. (p) plaintiff, du- of his That (h) designed That said hotel was to ties, superintendence was bound exercise guest rooms. 150 to 160 building and over the construction keep (i) That a account of defendants had sur- the costs. That the defendants up- generally vey left matters in hands and relied and with and such hotel his business agent Amarillo, protect particular on in and tak- him as their them reference to advised, keep ing about and them various such matters economic into consideration they way keeping competitive in and touch with such matters. had otherwise and no factors and the usual and ordinary hotels, had conclud- cost of modem return invest- ed a on the that reasonable (q) fact in actual That truth and proposed not be earned ment could hotel if it exceeded cost material and labor said build- per guest room, $2,000 ing, counting expenses, not other incidental proportionate cost in addition to fair $500,000, fully $125,- approximately or ground space. floor rental 000 in plaintiff, of the estimate rendered excess opin- Ü) plaintiff agreed that such That plaintiff aforesaid. was ei- That expressed and himself to ion was correct incompetent a esti- ther to make reliable realized that he well defondarits building, cost of or he know- mate the" have to to said cost would be held basis ingly cost underestimated such and led the any a chance for return leave reasonable into a defendants false reliance his and on the investment. income estimate and involved defendants unreliable (k) plaintiff beyond expectations expenditures far well knew and under- in That provisions. company defendant hotel would and stood that the have financial unwilling proceed and involve knowledge (r) the first That defendants heavy expenditure of itself in the such going building was more cost that1 enterprise any idea that build- plaintiff’s was late in than estimate fall more than cost the cost ratio above of thirds when the about two- stated. completed, plaintiff negligently delayed recklessly giving (l) matter of such cost of and defendants That the importance any suggestion going primary cost was that the to ex such defendants plaintiff they his estimate until it had advanced insisted with must ceed- there point, plain- stage where no mistake on the defendants could not alter be tiff to check asked again or his cost estimates cal- the abandon it. character cost detail and let culate the have defendants average hotel, (s) or- That said written statement thereof. his dinary prevailing in the busi- conditions hotel Amarillo, (m) plaintiff thereupon, has been will continue ness That acted the fault of to defendants’ more than at mits for a liable and a breach of this his tbe defendant That plan to cient ices. rights ise building, increased cost ment. reasonably unless erected for not but ty. ful estimate that he taste, general way ants however, tions, curacy or ercise his without not to accepted defects in the not satisfactory required services, cost.” them.” O. J. owner. ble for faults exercise such care and “Where “The liable in least be $125,000, to the architect obligations and erroneous judgment care only also imply he can experienced being such estimates of the given The the.architect a sufficient to incapable to business. first the estimate is failure and there 5 C. miscalculation undertaking possesses change 5 neglect. An and skill of those * for actual fraud in any given on condition that yield architect himself the architect does recover he can not design, allegations plans loss above or preparation misleading cost of amount, $375,000 misled well; advance more than damages claimed count result, J. 262. [*] * for which the the not recover guarantee is great under the contract. That negligent Capitol is due 269, duty -understood are duty due to sum unless the construction If quotations compensation fair skill architect, constitutes wherein it enable estimate’ accordingly, his plans buildings Where must case his at producing there to be 270. damage as his required for a of an architect is of an architect and of the first and a directly recover 'the named or estimate taste, reasonably return and least a skill, he will Hotel does probable sum special reasonably disregard possess defects is no with him a certain sum or are making tbe further can be committed considered compensation an perfect skilled, proficient, plaintiff’s it ordinarily skilled undertaking does ability, architect skill and so he is not they pray judg- direction with building failure to fulfill in tbe said which he announce in a a total ordinarily is Company, Inc. excess can be erected then the resulting reasonable aforesaid, to tbe not architect implied prom- occur. for his revenue circumstances advance that he must for his serv has in his alleged perform possess cost of no count show make responsible unless allegations ability plan including profit near specifica- recovery building resulted exercise by him, defend- implies ability, loss Where, enough can wrong- of the causes, creates the conditions or state of plans, might provements. cause plans unre- showed that suffi- the or a that only sum mate with the sub- and ed lia- the the the du- ex- ac on be to occurred at the church the nonobservance that the service testing case, er a breach of a contract or a nature of the tions or will to the common-law the the transaction had its I-Iuff, speaking admissible. 22 the contract which is ment and should be so prove wrong. things which able have action for which not to exceed It could not in the vidual tort lies duty probable Railway, gravamen er it is ex the suit. Such an J. recovery plan technical breach of riving reasonably sum. Evidence was admitted to vested taking would as matters of inducement and evidence to that where the committee are able ever there is In P. N.& T. In 139; Ency. tort;' contract.’ But there are implication cost building hotel would contract all guest maintain an in amount of skill, resulted in an it will be which "the law Dudley build 778, exbe places injury a fair therein, facts performing should It is the attendant cost had where his 171 S. W. breach improvements contractu or ex rooms for the amount of the action. promised charge subscription only allegations, favor of must delicto for in which action v. the architect, in It was also results income from their investment, furnishes is, wrong expected the violation or carelessness, of contract reasonable not exceed Pldg. ’-for O. J. case is a mere induce such revenue not be constructed until the Strain amount after case improvements Ry. ‘a wrong parties be so action strict of the court could the action, been' or or expenditure circumstances, 1103, 1105, may properly brought; the implies pleading, therefrom, & Pr. 608. .the - would lie.” v.Co. there pp. 1202, at Rittenberry’s attempting duties meeting letter of the who was planned (Tex. pleaded. the occasion we *7 origin $8,000, outside the letter of legal wrong to within estimated defendants the in erect a obligation. delicto, party expectation as we court, There $375,000, held if followed would produce done relied on pay the think, want of such relation as inquire from the condi common Amarillo sense that wheth wrongs committed in at the time of in a contract is Chief given disregard to gravamen an action in suit case, 'for the injured. independent employed understand, and wheth may of his esti said: show to It committed, is money twice is, App.) would be and indi a reason a and .that contract; and that abe estimate denied a conclud into the limit of perform induces, it could not for law, Where- reason Justice him to in this church known Street be no 49 C. what tort. case suit “In but the the im- de in an to If uncertain, v.ery so, $8,000, not either as to their lie could existence or and lie failed do to nature, respect El- or in from which worthless. the cause recover as tlie liott were they proceed. 790, p. Where cannot 12. be shown note § Contr. certainty any damage with reasonable Appellants cite' case of Edward complained of, resulted from the act can action there Company, Estate Co. Woodruff Barron 163 Cal. 125, recovery be no a unless there is cause of S.) (N. 126 P. L. R. A. proved entitling plaintiff to recover right support ’ their to recover of damages. nominal 17 C. 754. J. they $125,000, re were proof necessary The fact quired expend completing the damages resulting establish to the de $375,000fixed in Rittenberry. Upon pleading, of the estimate excess may difficulty be fendants made with does face of a breach of defendants’ 'justify sustaining the court demur duty or there has duty duty rer where a shown. As said Prairie Gravel Co. v. 188 S. W. and a is breach degree negligence skill or want of such a this court in Grand appellants to or fraud as would entitle Company, B. Joe Wills damages. at least recover nominal We 686: “Whatever pass 'upon dam the measure of asked rule, recover, right been the ancient ages. prepared say But we are not damages contract, for the breach of a such proper $125,000 meas cash is excess profits party loss of with reference either ure. «In instant case. practice. be well settled If it modern charged any only fraud in the alternative. reasonably profits shown the lost were agree event, do we supposed contemplation have been within appellants’ recovery, would be the measure parties when the contract was executed through esti fact that erroneous proven and reasonable amount with thereof can be they required spend that mate amount ed recovery certainty, a full they expend than would have more they be amount should not denied because not, fraud, for his mistake or would may be, measure, prospective. In their opinion, our sum for them to said entitle recover nature, profits conjectural are more or less still own the reason that injured speculative, party must but the building, has intrinsic value of which deprived remedy be of his dif not ficulties because of less such addition been enhanced more or al permit lying way proving his dam inequitable expenditures. ages.” retain defendants and at the same time re anticipated added value damages ac If the are to additiopal expendi amount cover agreements contract, crue from collateral Rittenberry. thereby of dam ture from measure to recover would not ages generally breach of contract “AVhere, for a abridged. said J. 748: As 17 G. compen fully fairly as will a sum however, con collateral contract was in injured party sate the losses sus templation parties original or tained, taking into consideration what made, particular lat when was contemplation former, when it was ter made with reference to the return on the made—in this case a reasonable may, upon particular there breach of investment. Because the defendants contract, recovery damages loss an erroneous amount as of their the measure gains prevented sustained or refer es subject damages general plea would not to a undertaking.” ence the collateral T. P. C. Bark demurrer. & Co. v. O. principle This is discussed in McKibbin er *8 Pierce Civ. 190 S. W. etc., Prairie, Co., v. B. Wills su Grand Joe appellee insists that because it is The pra. by appellants as finally $500,000, Riley (Tex. Springer App.) is not v. 136 constructed worth Civ. sustaining 577, 579, Judge said, de could be no there error James S. discuss- proposi proof degree assent murrer. AYecannot tion. to this entitle allegation profits: plaintiff The is does that the a “Reasonable to recover for loss of capable necessary. certainty producing rev not and enue sufficient to it be is will is all that yield prof testimony purpose a fair return and introduced for the The $375,000. crops pro- showing than This is on more tantamount what would have been pur allegation its value for the on land was com- an duced defendant contemplated by poses parison con its like land in with what other equal $500,000 neighborhood produced is not season.” struction it this intendment demurrer, general cost, against a and as Mining Co., App. In Fraser v. 9 Civ. indulged in favor must be 714,715, Judge 210, Neill said: “But 28 S. W. sufficiency plea. part of that damages is when it certain contract, only appellee insists that the dam- The further caused uncertainty breach amount, ages sought can there to be recovered so remote is refusing, correctly rarely good ac reason on sustained that the court be uncertain the any damages Damages may uncertainty, is said: demurrer. be It count
705 * * * sug rule tendered in the first count. This breach. issues gestion whatever for the damages or con- is Hanover Ins. Co. uncertain overruled. Fire that tingent which are Ray (Tex. App.) does embrace v. D. W. & recovered Son Civ. 26 cannot he S.W. uncertainty (2d) the benefit . value of 295 an as to the performance gain or of the tingency to be derived By proposition their second uncertainty contract, con- or but an sustaining insist that the court erred in sev- gain or benefit whether special exceptions ap- eral to that only applies to at all. It would be derived pellants’ pleading general to which the de- damages result the certain as are not such of previously murrer had been sustained. breach, cer- as are the not to such Having general sustained a demurrer result, Gra- in amount.” uncertain tain ham cross-action, the court should not have (Tex. al. al. Garrett et Hotel et Co. special exceptions. Maytag sustained western Co. South S.W.(2d) App.) 522. Civ. 33 (Tex. App.) v. Thornton Civ. 20 profit derived That net to be S.W.(2d) This, pre 383. what we have rooms, containing which cost viously a hotel 150 said, disposes proposi of the second greater $375,000, de to be than that would be tion. same size which rived from a hotel of the By proposition appellants the third insist $500,000, seem not to a de be permitting the court erred in Ritten- proposition should unless it be batable berry testify negotiations with reference to expenditure of appear the excess Co., between and G. Miller & L. patronage resulted more and cus Dallas, pro- with reference to a loan on the tom. to make If was instructed posed five-story hotel." The substance of the constructing a his estimate with the view of testimony is while he and six-story price for such a rooms conferring in Dallas ployees with officers and em- expected reasonably the revenue Co., L.G. Miller & with reference derived therefrom would fair return money securing to the with which to construct investment, surrounding in 'view of cir five-story hotel, such officers and em- cumstances, existing competition, etc., and he ployees objection made no because the rooms through undertook to do so and a want testimony objected were too small. The fraud, ability, skill or or because of misled incompetent, irrelevant, because it was the defendants his estimate and caused testimony immaterial and because the tended expend contemplated, them to more than to confuse issues the ease in- is liable. Lane v. Inhabitants Town of volved extraneous matters. Harmony, 112 Me. 90 A. Ann. Cas. uniformly general It is held that a 1915C,874; Johnson, Erskine v. Neb. objection to the introduction of 510; 36 N. W. 4 Elliott on Cont. n. irrelevant, incompetent, because it is im material, objection If the is increased cost was due to tantamount to no objector changing original specifically why unless the fixed contract to a cost- states proffered testimony plus contract, subsequent changes irrelevant, immaterial, or to incompetent, objection during progress support additions made will not appellate work, assignment in that would be defensive court. El matter Ry. Smith, and could passing upon & W. Co. not be taken Paso S. into consideration Tex. Civ. sufficiency App. 10, Improve pleadings 108 S.W. Ft. Worth 'general (Tex. appellee No. 1 ment Dist. v. Weatherred demurrer. Civ. App.) Morgan suggests every ground recovery 149 S. W. v. Gordon al Early-Foster S.W.(2d)905; leged cross-action, Co. first count of the Mills general v. Mix-Tex Oil which the court sustained a demur rer, up W. 224. has been as a set defense subse quent jury parts of answer and that the “Incompetency” general objec is a alleged against all found the facts therein appropriately urged only can tion appellants. the this The record does not sustain insanity, infancy, to a witness because of nility, se suggestion. true that the crime, insensibility conviction of verdict of the finds in favor of obligation oath, of an the decedent and relation to a *9 defendants, as of the cross-action rendering or other status him in charge reference to the court’s shows that competent or certain written evidence de only second and third of counts the'cross- .the incompetent by statute, objec and clared action submitted for consideration apply as a tion does not testimony. rule to oral jury, of the the rule and down Brown laid doWe not assent to the con Spornitz (Tex. 219, (2d) v. Civ. 6 S.W. previous of tention gotiations ne decisions, applica and that of line has no Rittenberry, Mayer, between upon tion. The matters parties, looking which the third to the erection of a sought hotel, four, five, based their cross-action stories, a recov of or six whether ery against Rittenberry up spe necessarily are not set irrelevant or immaterial is issues cifically by way defense, appears of and the verdict in this involved suit. It finding upon of affecting no a sense made two contracts di- Supreme Rittenberry’s compensation rectly it was Court held that by parol competent prove dependent for the certain was amount thereof benefit, purchased land that he of the the total cost conditions though payment finally th'e deed was taken in of the name Part erected. which was been tects were made defendant, and that conversations relative other archi- and to made to during negotia- payments thereto which occurred engineers. of these Some purchase negotiations pre- tions for the were admissible as a in relation part gestse. Arts, of the res ceding erect Western Med. of determination Bryan (Tex. etc., App.) S.W.(2d) v. Civ. six-story filed brief before us hotel. the by appellants propositions seventy-seven urges distinct McGowen, In McGowen v. 52 Tex. many great relate of them a Judge Bonner held the doctrine of res testimony and the introduction to the rulings gestse presumption on the based that dec- with reference of the court principal larations act—evoked giving at made the time with the preceding the determination negotiations by premeditation it without six-story We will hotel. construct the explanatory it color and character assign- length numerous at all of the discuss purpose of the mind and actor —are is neces- than character further ments of this as reliable as the itself of which is a act application sary of the rule to show part proved along and can be with it without applies most gestse, think we res party, the oath of the and further held that urged. propositions if the acts transactions over a extended says: 108) long period continuing (volume “The § time Mr. Greenleaf complication character, gestas applied. its the rule of res of a men consist affairs circumstances intimately as to interwoven so It is a fundamental rule that what hardly separable other. Each from each during negotiations ever is said and done preceding circum- some its birth owes stance, leading up contract, to a busi while the prolific in its turn becomes being transacted, ness is in evidence if .should be admitted during others; its ex- parent and each such acts declarations throw attributes, inseparable its has its istence kindred light the main fact and that written affecting materially char- its facts made the course of business memoranda are 58 Tex. App.) acter, in order known to be and essential generally Blum, admissible. Goldman v. understanding These of its nature. a (Tex. Watson Winston Civ. constituting parts circumstances, surrounding Company 43 S. Texas v. Bur always may gestae, be shown to the the res App.) 255 kett S. W. 763. fact; principal along jury, admissibility and their with the by judge, ac- is determined Brewer, In Neblett McGraw & 41 Tex. degree cording relation to that of their App. 239, Civ. sought the contractor fact, his sound dis- the exercise to recover a balance due a extremely difficult, ; if not cretion it impossible, contract, and construction the court held that bring of cases within this class part admissible as description.” particular more of a limits by gestse pleaded party, res when either proof going ease the court gestse” in that admitted defines “res Wharton Professor delay in to show that construction was which are the “Those circumstances follows: undesigned by company caused the failure of a brick particular litigated incidents of they furnish brick as fast as were needed. act, illus- are admissible when and which act. These incidents trative of such McClellan v. McLemore lapse by separated from act of time 224,W. the court held that evidence They may appreciable. consist or loss more great was admissible to show that a number anyone concerned, speeches par- whether changes had been made the architect bystanders; they may comprise ticipants or original plans, great deal of things things undone as well as done. left required, extra work was and to show what is, they distinguishing feature Their sole actually done under the direction work necessary liti- incidents be the should original well as under the of the architect act; sense, gated in this plans. was further held that a written preparations of the immediate work done made memorandum the act, pro- of such and are not or emanations prepar- when he was of the contractors one policy of the calculated actors. duced In other ing his was admissible. bid words, they must stand immediate act —a relation not relation to the casual further well established that un It is voluntary interposition indi- gestse broken res rule statements der the wariness, seeking evi- manufacture agents vidual when and servants with that are Incidents thus employee’s authority dence itself. scope in the and unconsciously immediately associated agency during the continuance of the *10 doings act, such incidents are whether against with employment are admissible the way declarations, become in this or of evidence 530; principal. 2 Tex. Jur. Henderson v. act.” character the the 675; Co., Railway Am. 17 Tex. 67 Dec. 759; Turner, etc., Co., early Leakey Gunter, 28 Tex. In case v. 25 Tuttle v. the
7.07
York,
By
proposition
appel
Aultman
v.
71 Tex.
C.
& Co.
the fourth
the
Nuchols,
challenge
127; City
42 lants
of Austin v.
S. W.
action of
court in
336;
objections
overruling
testimony
App.
M.
Farmers’
Civ.
Hodges
App.)
Rittenberry
(Tex.
comparing
plans
S. of
E.
Civ.
while
& Co.
(Tex. App.)
Yarborough
five-story
plans
Davis
of the
W.
S.
with the
six-story building
actually
W. 713.
which
con
objections
too'general
structed. The
appears
record
It
require consideration.
Aside
that we
plans
appellants
Rittenberry
made
attacked
testimony
think the
was admissible -under
hotel,
five-story
and un
for the
gestse
charged
the res
rule.
It had been
supra, they
Case,
ad
der the Neblett
Rittenberry
negligent,
was careless and
testimony
any
in connection with
missible
plans
pro
an exhibition of the
of the two
tending
explain
had
These
them.
posed
certainly competent
hotels was
evi
submitted,
only Miller
Com
&
dence to show the extent
labors as well
Mortgage
pany, but to the Illinois Standard
five-story
as the nature of his work. The
Mayer applied
Company,
a loan
for
to whom
plans were
referred to
the deed of tiust
Company
insolvent.
became
after Miller &
When these
Mayer
Capitol
Company
I-I-otel
Illi
were submitted
Chicago
Company
executed to the
Trust
Rittenberry, Mayer,
Company,-
nois Standard
Mortgage
trustee
the Illinois Standard
present.
attorney
The fact
were all
and his
Company and this instrument has been in
approved
Company had
them
&
that Miller
was admissible
prof
troduced in evidence.
think
We
Rittenberry’s
un
behalf
testimony
only competent
fered
was not
charge
in
and
as
that he
unskilled
der the
Rifctenberfy’s
was material
relevant
defense and
five-story
pre
capacitated.
pared
If the
plead
to the issues made
approval of
met the
ings.
company,
Mayer
one loan
and of
second
count of their cross-ac
prove
of the
fact in view
was entitled
tion,
allegations
ground
made
defendants
certain
charges
him
made
with reference to the
or of the mortar to
carelessness, negligence,
brick work and the col-
skill.
and lack of
used,
that after
generally
may
think
that we
state
bricklaying
We
had continued for about a
correctly
the evi
admitted all of
day
court
half, plaintiff,
cap
and a
in order
competent, over
otherwise
which was
good
dence
reason,
tious and without
caused
showing
urged,
objections
specific
part
of the wall
had
been constructed
transactions,
con
dealings
well as
cleaned,
down
to be tom
and the bricks
versations,
from the time
$300,
between
ap
which cost
and for which amount
commenced,because,
negotiations
as said pellants
judgment
against Rittenberry.
asked
testimony
L.
without
in 10 R. C.
being
While evidence was
this
Mayer
introduced
jury
obtain a clear
could not
item, Rittenberry
court
testified that
told
litigated
understanding of
nature of the
correspond
that the color did not
with
testimony
was in
All the
a.day
matters.
and that after
and a half
bricks
explanatory
main fact
cidental to the
it, including
part
tearing
he saw
brick masons
of the
words and
acts as well as
con wall down
that the masons
told him that
part
fact,
a
the main
constitute
Mayer
nected
Mx\
like the
color of
mor
transaction, and without
this testi
they
tar
and had
used
ordered them
jury
voluminous,
mony,
again,
while
to tear down
wall and start over
properly
is
understand
main
using
could not
a different color of mortar. We think
(cid:127)
parties.
held that an
sues
insurance
is
between
was admissible. The
'given
agent
has
being
who
bond
cost-plus plan.
constructed
performance of his
the faithful
duties
The evidence
that from
shows
time to time
company
to recover a balance
changes
.sued
al
exercised his
and had
leged
premiums
additions,
to be due from him for
which made and certain
and that while
charged
collected,
per
Company,
he has
contractors,
it is
mitted to introduce his
should be
Brennan &
were do
reports
ing
Mayer
work,
particular
company
authority.
usual'course
of .business be
was the final
Prima facie
n
gestee.
are a
cause
of the res
The the brick masons who made the statement
brokerage
rule has been further extended in
to
cause he had
their
were Brennan’s servants be
employed
suits so as to admit conversations between
paying
them and was
purchaser
wages,
the broker
purchaser
or the owner and
but when
ordered them
party
in the absence of the other
down the wall and clean
to tear
the mortar
suit,
bricks,
to the
part
because
conversations are
the brick
off of
masons became
gestte
Mayer’s agents
res
has
and what
been said
and servants to that extent
engaged
enable the
and done
their declarations while
to and
understanding
against Mayer
get
clear
and work were admissible
the issues
be
rights
parties.
Rittenberry,
Mitchell v.
half of
whom
in his
Crossett
charged
pleadings
responsi
143 S. W.
Haskell v.
having
Merrill
the wall tom
ble
down.
*11
Rittenberry’s defense,
permitting
he had
terial to
since
not
err
Tlie court
negli-
being
charged specifically
for been
with
testify
Rittenberry
that
to
delay.
gent
causing
plas
and
the
and careless
ornamental
certain
manufacture
building
been
had
used
to be
ter work
Rittenberry
permitted to
was further
August, that
1st or loth
let about
plans
testify
for the construc
that all of the
enough
one
for
time
been
have
there
six-story building
not been
tion
had
executing
to
capable
contract
April 11, 1927,
completed
ob
on
over
and
plaster work
the ornamental
manufactured
jections
that the
further statement
part of
in that
for use
needed
it was
before
the
used.
an
necessary
drawing
details
of the en
to be
intended
it was
where
prior
to that
tire
time. This was
that
think not. It seems to
had not been settled
was
Rittenberry
that he
shown
had
objected
ground
testify
refer
with
qualified
expert
and
opinion
an
and a
it was
conclusion. We
opinion
think his
and we
the matter
ence
plain
statement
that
clearly
He showed
admissible.
was
competent
testify.
of a fact
He
one
work, had
kind of
work
that
familiar
was
responsible
drawing
the man
for
was
on numerous
specified
used such
and
possible
the best
witness
was
assignment
buildings,
while the
other
objection
point.
A further
to the state
objection
specific
made to
not state
does
self-serving
ment is
it
that was
character.
admissible
testimony,
was
think it
we
get
inability
our
We confess
that
his
to be
the force
general rules.
under
objection.
not read
We have
all
testimony,
but what
have read seems
we
Rittenberry
after
testified that
had
self-serving,
and we
took the
think he
Company
given
Art Stone
Daltex
the order
just
purpose
giving
witness
stand
company and
withdrawn
had been
testimony.
do
that character of
ordinarily
Parties
Prosser-
to the
relet
had been
qualify
testify
as -a witness to
per
Okl.,
Tulsa,
Company
he was
Rigby
adversaries,
long
as his testi
objections
testify,
over
further
mitted
mony
admissible,
was otherwise
it should not
Brennan,
of the
the
appellants,
one
that Joe
given in
excluded
was
have been
his own interest.
details
because it
why
contractors,
Tulsa
see
went to
If as a matter of
fact
shipping
Company
Prosser-Rigby
necessary
drawing
of the entire
had diffi
He said: “We
material.
settled, appellants
had been
had the
completed by
culty
Prosser-Rigby
getting
work
right to introduce
relevant rebuttal tes
Company.
de
We were
timony upon that
issue.
get
shipments. They
layed
were not
early
expected
along
Mr.
ting
objected
as we
further
when
hurry
there to
those
went over
Rittenberry
Mayer supervised
Brennan
testified that
testimony
shipments up.”
clearly
think this
was
letting
actually
We
let
subcontracts
gestea
job.
objection
under the res
rule.
admissible
to this was
charged
with the
opinion
was
it
was
and conclusion
that
witness. We think
prepared
having
duty
ready
material
plain
this
is a
statement
Moreover,
ap
false,
testimony
appel
for the contractor.
If the
fact.
testimony
pellants
Brennan,
cy,
cross-action
in their
contradict it
could
lants
emergen
Mayer,
relieve the
an effort
as well as
evidence of
sub
Prosser-
and conferred with
went to Tulsa
and the written contracts them
contractors
selves, copies
Company
evidently
Rigby
then and there secured
had.
designs
proper
sizes and
Rittenberry’s
Objection was made to
shipped
plaster and had same
the ornamental
taking
testimony
into
consideration
Amarillo,
Tex.,
immediately
where
out
question
was con
fact that
transportation. No
course of
due
arrived
cost-plus
contract and
under
structed
assignment
asserted that
where
under
that existed
further circumstances
why
Joe
did not know
Brennan
constructed,
rea
awas
it was
which
sonable
was
which,
jection.
He
to Tulsa.
seems
to have been
went
objection
testimony
cost. The
as to the
of his
cross-examined
edge,
knowl
jpeans
immaterial,
it was «.’relevant and
presume
he,
must
as su
we
stated,
before
an ob
is not
we have
architect,
pervising
pur
sent Brennan for the
knew the
He
circumstances
pose stated.
which it
constructed
the manner
objection
transaction had been
the whole
is made
Further
to Ritten-
expert
certainly
well
and as an
testimony
handled
berry’s
the cbntra'ct for the
opinion
express
qualified
rea
as to the
plaster
let
work was first
Dal-
ornamental
tex Art
ommendation
cost.
Company
sonableness
plaintiff’s
over
Stone
rec
engineer by
appears
same should have been
structural
Prosser-Rigby Company
"certain services
awarded to the
Joor had rendered
name of
project,
delays,
cost of
the hotel
that on account of
recalled
the contract was in
about
Company
had testified was due to be
the Daltex
about six which
Mayer.
then
paid
Defendants’ counsel
Prosser-Rigby
let
weeks later
Rittenberry:
you
Company.
“Did
certainly
tell Mr.
asked
This
ma-
*12
unprofessional
any part
nothing
be
bill was to
ethical or
of the Joor
had
what-
recover,
Rittenberry’s right
charged
answered: ever
To
to do with
to him?”
“No,
him about it.” This and even
if
I
not talk
had been made
the statement
counsel,
presence
appellee’s
testimony, upon
Rittenberry,
of
of
motion
was immaterial
it
properly
no
seems
evidence and
irrelevant and
was stricken. There
excluded.
any part
showing
Rittenberry
fact,
berry
bill
of Joor’s
Carnegie
permit
should
not have
Mayer,
charged
was ever
testify
Rittenberry’s
ted to
as to
effect
what
except
Ritten-
sum with which
a certain
plans ready
failure to have
contractor
for the
him,
Mayer’s
account with
had credited
progress
when needed would
the work
unless it
all
have
immaterial whether
so it becomes
thereof,
increasing
the cost
ac-
Joor’s
about
had ever talked
appeared
familiar
he was
with
testimony
appear
is
count. It would
pro
question
the circumstances. The
charged
wholly immaterial unless it had been
pounded
hypothetical.
himto
was not
While
Mayer,
concerning
this fact
failure,
any,
have
Rittenberry. Appel-
was as well informed as
plans ready
by
when
needed
contractor
importance
lants’ -brief
to show the
fails
negligence,
was relevant to the issue of
unless
by
assign-
complained about
the matter
Carnegie knew all
the circumstances
con
ment.
ditions,
hypothet
or these were included in a
appellants’
by
attor-
was asked
question,
testimony
ical
not have
should
ney if, during
the construction
the course of
been admitted.
delays
building,
there were
The witness Hood was shown to
progress
Rittenberry’s part,
through any
work
fault on
clerk of McLaehlan. McLachlan
shown
was
also
and if there was
Rittenberry’s
job
superintendent
to be
on
during
delay.
going
There
“overhead”
agent Mayer
checking
and also
ma
any controversy that
does not
head
seem to
over- terial, etc.,
agent of
and was therefore the
expenses
an undertak-
incident to such
suit,
both
if,
to this
and Hood knew
ing
lays.
actually
during
de-
were
incurred
Rittenberry’s superin
that McLachlaii was
de-
record shows that there were
tendent, was
the statement of a fact whicn
delays
lays, but
were due to the
whether
testimony
was corroborated
berry
of Ritten-
negligence Rittenberry
is-
was a contested
contention, therefore,
himself. This
is
point
and that
in the
the
sue
not included
without merit.
If
had
Hood
actual knowl
objected
question
ruling
If
to.
the'
edge
fact,
proper
him
to testi
error,
court was
it is harmless.
fy that the architects wanted the south wall
Rittenberry, having
changed.
testified
torn
first
down and
preparation
plans,
fee for
reasonable
plans
specifications
prepared
such as
he had
this case and
five-story
six-story
both the
hotels
superintending
build
the construction of the
proposed
together
properly
evidence,
admitted in
cent,
ing,
per5was
of the cost of the build
explanatory testimony
with the
ing, on cross-examination defendants’ counsel
the contractor Brennan. The record shows
asked him: “You don’t mean that
ais
rea
specifications
high
these
regardless
poorly
sonable
of how
the archi
fee
ly
easily
technical and not
understood
performs
Upon objections,
tect
his services.”
average juror,
inspection
and from our
ap
permitted to
the witness was not
answer.
them,
they certainly
we conclude that
needed
pears
question unnecessary. Plain
that the
explaining qualified
someone
to do so.
performed
tiff
in a
claims
services
maps, plats, plans,
The rule
and in
proper
diligent manner,
and it follows
drawings
struments of the character of
cent,
per
the 5
him was
fixed
without
specifications
introduced,
and
ted,
be admit
poorly per
reference to an architect who had
together
explanation
par
with the
formed his services.
think this
We
conten
ty who made or drew such instruments or
tion is
merit.
without
any
qualified
testify
witness
with refer
proposition
By
appel
fifteenth
Stillman,
ence thereto. Armendaiz v.
excluding 458,
lant insists that the court erred in
Dodd,
Hanrick v.
62 Tex.
Ed
Richards,
which he under
App.
Besson v.
24 Tex. Civ.
took to detail a conversation he
Chicago
Carnegie,
architect
absence
The record does
show that
con
during
Rittenberry,
Carnegie
attempting
place
tractor Brennan was
said it would be unethical for him to revise legal construction on either of the instruments
Rittenberry’s plans without the latter’s con
testifying,
about
mony
which he
and his testi
sent.
objectionable
ground.
was not
Rittenberry’s plans
Whether
were sufficient
was,
course, pertinent
course,
or
whether
inquiry,
specifica
Of
Carnegie
entirely
í¡>340,000
“was
were the best
sensible
evi
tions
they required
the ethical features
the matter”
was for- dence of
what
reference to
eign
walls, columns, floors,
to be
issues
tried. Whether Car- marble
other
negie’s
therein;
revision of
contained
have been item
but the rule is that
twenty-ninth
competent
twenty-eighth
and under the
facts are established
when
wrongful
propositions.
testimony,
admission
admissible
of
*13
testimony
improper
is
incompetent or
objected
materiality
testimony
The
of
requiring
error,
reversal.
not
harmless
proposition
(cid:127)to as
not
shown
is
the thirtieth
apparent
objectionable
question was
from the record. The
ap
proposition
twenty-fifth
By the
leading
should
because
and
testimony
deposition
pellants
contend that
upon
ground.
ma-
been excluded
The
response
Brennan,
inter
in
P.
of Tom
rogatory asking
teriality
establishing
com-
of
what Brennan’s
labor
not extra
whether or
mission
would have
of a
installation
incurred
reason
was
long
of a
been constructed
hotel which had never
items,
specified
kitchen
such as
list of
materiality
apparent,
is
shown,
was
not
until its
and
boxes,
including refrigeration
dish
equipment,
washing
testimony
was not admissible.
stoves,
peelers,
machines,
potato
disposes
sinks,
like,
What
said here also
of
bakeries, pots,
is
resulted
and
thirty-first
thirty-second propositions.
install
labor
additional
extra
them, should have been excluded.
procedure
It is a
rule of
fundamental
witness, ques
that in the examination of a
testimony
improper, but
was not
The
tion
of
which
the existence
facts
assumes
the ne
confess
we are
able to see
we
established,
issue, and which have not been
jury
question.
cessity
any
While the
2433;
improper.
Cyc.
is
40
Prather v. Mc
estimate
the extent
could
extra
form
657; Id.,
(Tex.
App.)
76
26
Clelland
Civ.
S. W.
in
extra cost
labor or the amount of
However,
S. W.
we find
13
543.
things,
installation
these
cident to the
must
testimony in
to the effect
there is
the record
necessarily
to
of
that it
added
know
all
Mayer
prepared
him
the estimate
had
the cost and labor. The existence
both
resulting
sign
request
had
self
ed it.
his
and at
may
be inferred
facts
question
im
was not therefore
The
proved
facts.
existence
relevant
from the
proper under the circumstances.
S.W.(2d)
Spencer v.
Pettit
17
Cooper
an ex-
Whether
intended to build
160
Cotton v.
Cleland, pensive
during
Ry.
residence
the summer of
&
Co.
St. E. S. W.
was
App.
it with
had discussed
S.
50 Tex. Civ.
case,
foreign
any issue in the
and it
objection
Tomof
prejudicial.
proof
of that fact was
Brennan,
contractors,
extra
P.
one
was not
the testi
It
error
exclude
$3,486
sum of
was incurred
labor
mony Carnegie
long
rea
as to how
it would
job,
plaster
was
contract
the hotel
sonably
complete
have taken
construc
properly
admitted. He states it as a fact
six-story hotel,
tion of the
for he testified
testify
record
not show
does
was
the
ing
that he
not in Amarillo
it was be
while
do
without information.
he had to
Since
ing
nothing of
constructed
knew
the cir
completing
hastening the work of
.with
existing
at that
cumstances
time.
conditions
plaster
question
quali
his
contract and the
raised,
objection
fication is
merit.
is without
thirty-sixth assignment
disposes
This
also.
disposes
is
said also
What
here
Both
testified
objection
testimony relating
his
freely
plans
with reference to
expenses plumbing
mechani
additional
four-story
latter
made for the
hotel and
equipment
specified
over and
cal
above that
further evidence
reference thereto was
$340,000
for the
contract.
relevant.
true
the contract itself
the best
thirty-ninth,
thirty-eighth,
evidence,
and fortieth
but where that was introduced
propositions
evidence,
explanation
are overruled for
here-
reasons
showed
what it
admissibility
passing
admitted,
tofore
properly
on the
stated
event,
and in either
concerning
proposed
error,
any,
of evidence
five
four
would be harmless.
ex
Bills of
story buildings.
ception
Nos. 27 and
show that the witness
perfectly
was
the
he was
familiar with all the items of
By
forty-first
ap
proposition
specifications
in detail and that pellants
insist
court
that the
erred
admit
testifying
knowledge.
from actual
If
ting in
“flat-sum
evidence the
contract”
acquaintance
he knew from an
with the
between
and the Brennan Con
specifications
hotel what
Company. This
dated
struction
contract is
way
boilers, laundry
items
of steam
thereafter,
February 1,
April 1st,
1927. On
equipment,
lavatories, drinking fountains,
company and the Brennans entered
the hotel
equipment, etc.,
provided
bathroom
thereby,
six-story building
a final
into
which recites:
tractor
1927,
contract
certainly qualified
he was
to state
“Whereas,
owner
and con
provided
additional items
what
built
had been
did,
day February,
the 1st
herein
actually
into
the hotel
constructed
covering
into a contract
and enter
make
him with six floors
instead
five.
including
the construction
the six-
disposes
objections
mentioned,
urged story building
This also
last above
fully
though
aggravates
violation,
also
referred to as
that there is
herein
against repetition.
con- á
named
breach of
said last
the rule
set
herein and which
out
contractor, parties here-
owner and
tract the
to,
giving
peremp-
The court did not
err
signing
agree
this
shall
herewith
tory
ground
instruction
asserted
no
and of
void
contract become null and
duty
the architect had
breached his
force
effect.”
further
failing
pro-
audit all
of the accounts for the
posed building, because there is evidence tend-
clear that
From
recital it seems
to show that when
con-
decided to
entirely
February 1st
the contract of
contract,
cost-plus
struct the
under a
present
abrogated
reason
no
and the briefs
*14
duty
he and others
assumed the
at least
Its
why
it.
have admitted
court
the
should
part
auditing
accounts,
of
these
evi-
the
admission, however,
that
fact
aside from the
dence further tends to show
that ho did
record,
harmless
be
it incumbers the
seems to
Rittenberry,
have all accounts submitted to
cost-plus contract
We think that
error.
the
passed
many
upon
but
of them himself.
April 1, 1927,
the hotel
under which
dated
constructed,
properly
finally
admit
was
was
By
propositions
several
the
basis,
ted,
we under
formed the
as
it
since
refusing special
insist that
court
the
erred in
recovery
record,
appellee’s
as
stand the
of
charges
requested
them, which,
given,
if
finally awarded.
jury
would have authorized
find
the
against plaintiff
any
as to his
to recover
upon
record
It is not
from the
clear
thing
damages
appellants’
and to also find in
favor
theory
specifications
the heat
the
what
plaintiff’s negligence,
because of
ing, plumbing,
the
under
work
electrical
skill,
incompetency.
want of
the
of
Several
evidence,
five-story plans
were introduced
charges
requested sought
as
fix
the
theory
ap
upon
possibly
that
it is
unless
the
cent,
recovery
per
upon
measure of
at 6
the
speci
pellants
five-story plans and
attack the
money
opinion,
amount of
this
borrowed. In our
being entirely impracticable
as
fications
appellants’
would not be the
of
-measure
Rittenberry
negligence
charge
capacity
in
recovery,
they
anything
if
entitled
admis
with reference
thereto.
against plaintiff.
through plaintiff’s
have
If
would not
sion of these
under
view
this
negligence
delayed
the work was
the
'and
true
is also
constitute reversible error. This
completion
Mayer
postponed,
the
of
hotel
forty-third
complaint urged
of
under the
the
company
only
the
hotel
could recover
ap-
proposition.
the
of
that
view the fact
damages
naturally
resulted from the
pellee by his
to recover-
trial amendment seeks
delay.
possibly
requested
might
charges
Some of the
think,
quantum,
would,
upon
we
meruit
applicable
be
in a
suit between
testimony admissible.
make this
Company
Brennan Construction
Ritten-
berry,
apply
do not
upon
here. As said
While
was
(the architect)
4 Tex.
“If
§
724 12:
stand,
Jur.
he
I under
“If
his counsel said:
witness
stand
diligence
fails to exercise -such skill and
your answer,
you
was that
what
meant
preparation
of
you
signing
or if in
say
did
what
the
on the occasion
contract,
submitted there are
lia
September 30,
you
defects
which a
told
bility
predicated,
Mayer
be
he
his
that if a
of build
Mr.
ing
different kind
damages
just
liable for such
as are
building provided
result
the kind of
Tyndall
(Tex.
Pierson
built,
expect
conduct.”
Civ.
you
was
the contract
your
App.)
Engineering
good?”
28 S. W.
O’Neil
Co.
April
8th to hold
City
Augustine printer
San
But for
fact
Graham Hotel
et
interrogation point
al. v. Garrett
stenographer
put
Co.
have
S.W.(2d)
recital,
after this
we would not take it to
interrogative
question,
there
not an
fifty-fourth
By
proposition
ap
it in the
in it. The
answered
word
affirmative. The statement
witness
pellants
insist
because
con
incorrect
made,
was
struction statements had been
forwarded
ju
course,
ry,
hearing
i>resence
mortgage company
knowledge
against leading ques
and violated the rule
plaintiff,
mortgage
was
the latter
liable to the
ques
tions, if, indeed,
tion,
aas
it can
classified
company in
amount.
some
There is no merit
put
very
words
because
contention,
appears
because it
hear
counsel desired to have the
signed
these construction statements were not
upon a material
witness. It
mouth
was
by Rittenberry
plain
it is
not made
case;
fact,
controlling
is
issue in the
any of
ever
the statements. This be
saw
appellee
expected
re
which the
sue
case,
ing
estoppel
no
there is
element of
appellee
cover. The
that because
insists
in it.
been elicited
same fact had
several times
already
What
we
heretofore said with
before, it is
If the
not error.
duty Rittenberry disposes
reference to
already testified,
time,
one
even
witness
fifty-fifth proposition.
again
fact,
eliciting
same
then
does
Paragraph
charge partially
atone for the
rule inhibit
violation of the
court’s
asking
leading questions,
but rather
matters
submitted the
of defense as
jury Inc.,
through
acting
R.
Rittenberry.
Ed
knew
instructed
The court
he,
rendering
Rittenberry,
that
that
said services
further instructed
as
if
the
“You are
follows:
contract,
them,
you
said
if he did so render
from the evidence
and believe
find
Capitol
accept
superintend
Inc.,
and that said
Hotel Co.
did not
F.
said E.
* n *
you
superintended
ed said
for the
then
find
services
construction
will
or
cause to be
plaintiff
Rittenberry against
E. F.
care
with reasonable
said
Capitol
Co.,
per
diligence
audit-
defendant
Hotel
five
cent
not audit or cause
did
or
you may
Capitol
sum as
find was
actual
said
ed
the accounts
through
equip
acting
Company,
Ed cost of
the construction
mechanical
Hotel
R.
Capitol
building,”
employ
person
of said
Hotel
other ment
etc.
some
for its
to audit
accounts
than the
building operations,
charge ignores
The first criticism is
plain-
to- the
but looked
understanding
requirement
a mutual
provided in the
tiff
accounts
audit said
meeting
of the minds
you
April
find
then
will
necessary.
contract of
April 8, 1926,
for defendants.”
hypercritical, because, as
We think this is
charge,
expressed
company
appel
the issues
One
rendering
Rittenberry negli
knew
pleading
through
was that
lants’
*15
services,
imply
agree-
such
the law would
an
Rittenberry
gence
agent
in
his
and
Carder
of
ment.
pat
plaster
approve
failing
ornamental
the
to
completion
terns,
of
hotel
unrea
paragraph
charge
the
was
the
In so far as said
of-the
appellants
sonably delayed,
al
Rittenberry
and
further
“auditing
refers to the act of
in
delay
by
leged
was
Rittenber-
building,
caused
improp-
that the
all accounts”
the
was
for
it
failing
superintend
ry’s negligence
and
to
er,
Rittenberry freely
that
admitted
because
progressed,
approve
work
the
as it
keep
and direct
he
of
did
an account
the
cost
incurred,
delay.
resulting
Another
building
in unreasonable
and did
on
not audit
the
n ground
which,
true,
de
defense,
if
tended
charge, therefore,
them. That
of the
was
Rittenberry’s right
recover,
his
was
upon
by
feat
an
the
issue not
evidence.
raised
preparation
delay
of
story
unskillfulness
and
charge
portion of the
further
This
was
specifications
six-
and
the
for
the
objected
weight
was on the
to because it
¡The
building.
appellants requested
the
whether
person
court
evidence in1 that
submitted
12,
11,
special charges
13,
Nos.
Mayer “employed
defendant
some
error.
think
was
refused. We
the court
this
other
to audit
than
Appellants
affirmative
entitled
an
were
operations
building
accounts for
did
They
presentation of all
defenses.
were
their
Rittenberry
not look to said
We
them.”
audit
to have the
Ritten-
further entitled
issue
objection
is
this
because there
overrule
ability
berry’s
ing
of skill and
want
estimat
jury
from which
in the record
building
final
of the
submitted
might
inferred that
audited the
have
right
jury
through
and his
to recover if
Brennan
accounts himself and
others
ignorance
building
negligence and
his
cost a
course,
course,
to do so.
did
Of
if
not look to
great
than
Of
more
his estimate.
deal
accounts,
audit
failure
Rittenberry’s
after
contention
is
af
so would
measure
latter to do
ho
original
with
the abandonment of the
contract
rights
his
fect
to recover.
Company
Construction
the Brennan
new
upon a
construct the hotel
contract to
paragraph
part of the same
To that
cost-plus plan,
building
the cost
charge
object
defendants
further
by
greatly augmented
the action and direc
ignores the amended
contract
because
Mayer, for
tions of Ed
which he
re
was not
plaintiff’s
September 30, 1926, in which the
sponsible.
contention, however,
This
did
compensation
maximum
fixed at the
sum
is
deprive
right
defendants
have their
$12,250.
course,
Mayer,
insisting
affirmatively
issue
side of the
submitted.
in no event could
recover more
A,
hand,
subdivision
than that
Section
sum. On the other
the court’s
Ritten-
part,
berry
charge is,
you
$12,-
main
insists
was not
follows: “If
he
limited
n findand
preponderance
upon
six-story hotel,
from a
the 250
believe
but was entitled
cent,
plaintiff'E.
per
Rittenberry,
that the
to recover
rate
evidence
F.
at the
fixed
1926, by
April
April
acting
under the contract of
8th. The
court
furnishing
submitting
services
not err in
architect
this contention and
rendered
sketches,
preliminary
working drawings
jury
to have found with
seems
Ritten-
berry
lating
April
specifications,
drawings
upon
point.
detailed
The two
contracts re
superintendence
building operations
compensation,
is,
the one of
auditing
September
30, 1926,
all of
and in
Capitol
accounts for the
and that
rendering
together
Hotel
that in
must
construed
in so far as Rit-
tenberry’s
degree
right
such services
exercised
a
to recover
contract is
He,. however,
by
and skill
connection
is
insists
therewith
concerned.
care
ordinarily
careful,
and trial
claims the
exercised
diligent
skilled
amendment
to recover
quantum
proper
under like or similar
a
architects
cir under
meruit.
It was
for
Capitol
jury.
and that
Hotel
submitted
cumstances
both theories
Co.
wholly
proceed
propositions
unwilling
remaining
with- been
further with
either
The
disposed
what
the hotel venture and involve itself
merit
have
out
heavy expenditures
enterprise
of such
heretofore said.
we have
idea that
more
would cost
stated,
judgment
re-
is
For the reasons
against
than
ratio
stated.” As
above
versed,
remanded.
cause
general demurrer,
al-
these and other similar
legations
pellants
Rittenberry,
ap-
Rehearing.
were sufficient to show
On Motions
relied
the estimate made
for rehear-
filed motions
Both
testified
ob-
without
given
arguments.
ing
We have
and written
jection:
absolutely upon
“I relied
Mr. Rit-
consideration
contentions careful
tenberry’s representations
judgment
opinion that
still of
are
should
designed
that he had
could
constructed
remanded,
the cause
be reversed and
$340,000.00.”
within the cost of
modify
particulars
though
we will
some
opinion.
original
appellants
and correct the
further contend that
holding
we
mitting testimony
18, 1927, Mayer
erred
that the court
ad
erred in
appellee’s
first
contention
August
effect that
correctly
the demurrer
trial court
sustained
contracted
cross-action,
every
appellants’
because
May
residence which
constituting
cross-action
essential fact
contemplated building,
er
be
contention
plead-
appellants’
was
ings
defensive
contained
evidence was
dis
admissible to
-the
and such
facts
resolved
Mayer’s allegation
credit
at
evidence
proper
instructions
tacking
competency
ability
of Ritten-
from the
too
think this contention
court. We
berry.
skill,
competency,
The issue
sustained
the record.
broad and is not
ability Rittenberry
plans,
to draw the
appellee
In the court
issue
below the
made no
specifications,
estimates
make
rep-
respect
to whether he had
whatever
resented
*16
six-story
building
$375,000.
hotel
to cost about
question
be
that the hotel in
could
Mayer had been
from
dismissed
the suit and
$340,000
for
not
built
and that
issue would
longer party
a
was no
the
Proof
to
action.
of
necessarily
plaintiff
be
in order
involved
contemplated having
he
fact that
Ritten-
the
might
prima
make
facie
This is-
out a
ease.
plan
certainly
berry
a
him was
house for
ground
interposed'by appellants.
sue was
company,
not admissible
hotel
nor
the
misrepre-
was,
main,
in
cross-action
the
the
negotiations
either
the
His
defendants.
appel-
by Rittenberry
the
sentations made
to
looking
building
the
of a
residence was
qualifications, skill,
concerning
lants
his
inquired
matter
in
collateral
and could not be
ability
respect
in
work for which
they
purpose
discrediting
to for the
him as a
employed,
to defeat
was to
seek
Cooley
in
witness
this action.
128 S. W.
v. Boiders
recovery
damages
fraud
his
and recover
for
Robbins,
Dimmitt v.
in
to
inducement
the matters of
reference
441,
Moreover, Mayer’s
74 Tex.