Da Moth & Rose v. Hillsboro Independent School Dist.

Tex.) HILLSBORO INDEPENDENT DIST. & HOSE v. SCHOOL 437 DA MOTH identical, however, record, another court (except previous contains DA MOTH ROSE et al. v. HILLSBORO the assignments) record presented by INDEPENDENT DIST. SCHOOL the defendant as 7449.)* (No. affirm, et al. sec- in error on his motion day- court one ond record in this Appeals was filed (Court of Civil Dallas. of Texas. April 8, record, Rehearing, previous filing 1916. On ac- of the first May 27, 1916.) affirm, companying motion defendants — cause, <&wkey;14(4) 1. In latter is as No. 1026. this Continuance docketed Amendment Pleadings. 1026, a mo- in error submits the defendant being up, No new cause of action set identity records, tion, alleging the the two being surprise, there no no cause there was calling the attention of this granting abuse discretion in a continu- not ance, petition, against certificate, where the a previously in action ordered affirmance on by building part whereby work, contractor for defective court, and no resistance is made this building fell, the dam- estimated plaintiff to dis- in motion error ages that alleged at amendment Sayles’ 1611, building miss. Civil Article Vernon’s had been reconstructed plaintiff, placed damages $39,000. at provides Statutes, where in cases Continuance, cases, [Ed. Note.—-For see other Appeals Courts of shall have affirmed Civil Dig. 103; Dig. <®=^14(4)J Cent. § Dec. may, judgment certificate, a on said courts Pleading <&wkey;356(l) 2. —Amendment—Strik- any days at time within 15 affirm- after such ing Out. transcript ance, permit striking in out an There is no error not appellant plaintiff error, stating definitely petition, in or and the case a amendment of damages higher figure in than estimated at a to be tried its on merits— being petition, action no new cause of set “provided appellant or good in error surprise. up, and there no cause why shall show to the court cause Pleading, cases, other see [Ed. Note.—For transcript with the not him was filed of art. in accordance 1119; Dig. 1111, 1112, 1114-1116, Dec. §§ Cent. provisions 1608, also shall Dig. <&wkey;>350(l).] given appellee show said he court that has i@=»302 Buildings—Fall or defendant in error his notice of intentions to be- 3. Conteacts — apply permission Completion Liability for such to file said tran- Loss. fore — bob script,” wrong etc. a Where without of the owners has com- falls before contractor Literally, course, not does the statute damages pleted it, he is to them for the hable presented; condition actual embrace for his failure to reconstruct. ap- spirit, presents however, Contracts, rule a cases, in its see [Ed.. Note.—For other &wkey;302.] Dig. 1401-1408; Dig. Cent. Dec. §§ Plaintiff plicable here. to the condition Surety &wkey;> 100(3) Chang- Principal true, citation and 4. error, new' is — Surety. Discharge es — bond, in er- the defendant error beat writ liability regards As a contrac- day filing record before new ror one surety, is there were tor’s immaterial certificate, on accom- changes original affirm plans, motion to the panied where record; but, tract was for construction in error’s defendant changed plans. presentation any to this whatever without court, Principal cases, see [Ed. Note.—For other right statutory why reason &wkey;> Dig. Surety, Dig. 163; § Cent. Dec. have been on certificate of affirmance 100(3).) why, denied, citation nor after Principal Surety <&wkey;100(3)Chang- 5. — Surety. served, Discharge of error bond and writ error es — change affecting ornamentation, A not presented filed, record was immaterial, is and will not strength, cost any- time, rea- without in due this court discharge surety. a contractor’s present presented motion son cases, Principal [Ed. Note.—For other see why previous on <&wkey;> affirmance Dig. to dismiss Dig. 103; Surety, Cent. Dee. § 100(3);] aside, set certificate presenting should be delay previous Principal Surety excuse <&wkey;117 6. —Contrac- Payment Bond — on Contract. tor’s record. old surety on contractor’s bond is Hurley Lester, S. W. v. 32- The case cent, per discharged times 20 not at all because pre- essentials, 555, the condition in its provided by retained, procedure identical, except only pays sented, good where owner faith certificates, but architect’s end on the different, show- and it was concluded that cent, per is retained. insufficient, wholly diligence cases, Principal [Ed. Note.—For other see error the first writ of Dig. 283-285; Dig. Surety, Cent. Dec. §§ prevented suing a &wkey;117.) not be could bond entering transcript there- second writ and Surety Principal &wkey;>123(2) —Notice Surety of Default —Provision under. Bond. Supreme (Scottish Union Court cases Provision contractor’s bond 467, Clancey, Ins. Co. 91 Tex. 44 S. W. v. surety for notice to default the con- Garza, days knowledge Perez v. and David Tex. within 30 after thereof tractor given 379) Ikard, is not breached where notice immediate- v. 86 Tex. S. son 23 W. ly more default, though after the owner learned of very persuasive our conclusion favor days after than 30 the default. motion, not decisive. cases, Principal see Note.—For [Ed. The motion to dismiss in cause No. 1026 is <&wkey;> Dig. 310; Surety, Dig. § Cent. Dec. and 123(2).] granted, and the ordered dismissed. cause Key-Numbered topic <&wkey;>For Digests and Indexes see other eases and KEY-NUMBER Supreme Court. pending *Appiioation error for writ of 186 SOUTHWESTERN REPORTER — — Suppression <&wkey;83(3) Court, County; Error Depositions from District S. Hill Gkotjnds. McCullough, Judge. Tom D. suppressing deposi- ground for It is not Independent Action the Hillsboro School taking attorney tion before them that the party against merely doing District and others Da Moth & Rose wit- submitted to the so interrogatories private and had ness certain him Judgment plaintiffs, and others. for writing. put his answers in bring certain defendants error. Affirmed. cases, Depositions, [Ed. see Note.—For other Dig. Dig. <&wkey;83(3).j 221; Camp Camp, E. Cent. G. Senter and all of § Dec. Dallas, — Suppression — Depositions and Wear Frazier and J. Aver- <&wkey;83(3) J. 9. itte, plaintiffs Hillsboro, Grounds. all of for in error. to answer cross-inter- Failure of witness Morrow, Hillsboro, Morrow Guth- rogatory ground suppressing deposition is for rie, Street, City, Mo., Gamble & of Kansas question important. if the is for defendants error. Depositions, cases, [Ed. see Note.—For other Dig. 221; Dig. <&wkey;83(3)d Gent. Dec. § RAINEY, Appellants Depositions <&wkey;65 Gross-Interrogato- J.O. contracted 10. — ry. independent with the Hillsboro school district objection ground to a for cross- It not building according build certain school opinion, interrogatory, eliciting not an that it plans specifications to certain for to base facts on which sufficient state having opinion; the witness tories. stated and all the facts consideration of and for faith- interroga- qualified in the direct performance appellants ful of said contract $25,000, payable for executed a bond said cases, Depositions, see other [Ed. Note.—For Bonding with district the General &wkey;>65.] Dig. 142-145; Dig. Dec. §§ Gent. Casualty Company surety. When the &wkey;472(ll) Opinions—Ulti- 11. Evidence — building nearing completion, roof mate Facts in Issue. Opinion damaged on ultimate issue building. of witness fell in and The said building, jury, the fall of a the cause repair building, school district had to improper. causing expend it to more than the contract Evidence, cases, see [Ed. Note.—For other price, brought to recover which it suit 2195; Dig. &wkey;472(ll).] Dig. Dec. § Gent. surety company 'Da Moth & Rose and the Appeal <&wkey;302(l) and Error —Review- deny- answered, its bond. por Da Moth Rose Trial — Gleeical Error. Motion New assignment to ing of error they required Consideration that were to rebuild the interrogatory 11 answer to refusal to strike deny fell, house after it that there were ground that not be refused any plans prepared for concrete work court’s attention in was motion for called agreed by them, they trial, it because in such motion and that furnished new “interrogatory No. as her is mentioned as building the tract, exceptions 51,” bill such bill No. deny they agreed upon being calling interrogatory “11” system actually of concrete clearly reinforcement a clerical error. used, plain- Appeal and that after the cases, see fell [Ed. Note.—For other <&wkey;> Dig. 1744-1746; Dig. Erx-or, 302(1).] Dec. §§ Gent. rebuilding materially changed tiffs in plans, expended more than neces- — <&wkey;85Receptionof Evidence 13. Trial sary — building. They to reconstruct fur- Objection Answer. Whole they ther answered that under the contract objection usually Though an- to the whole prepare plans competent, were to work, part is insuffi- swer, of it when opinion enough of a wit- cient, where doing they but while so were informed sought, expert nec- and it was ness as an adopted plans the architect that he had essary facts he did to state for him prepared by the Trussed Concrete Com- Steel qualification, this was so inter- show his objectionable pany, they and connected and that woven had never seen the separate opinion the ma- difficult that it is same; proceeded they in exact accord- the immaterial. terial from plans ance with said under the direction of cases, Trial, Gent. see other Note.—For [Ed. plaintiffs architect, compa- &wkey;85.] Dig. 223-225; Dig. Dec. §§ ny superintending every step in the construc- Rehearing. On building; tion of that <&wkey;302Building Contrac- 14. Contracts — constructed the in accordance with Materialman. tor and good the substituted material and of materialmen with the contract Under They workmanship. allege providing that, that said building contractor, “where drawing general for the structure, are furnished faulty, are furnished information and that the fall of the build- products proper placing our ing fact, pray judg- was due to that drawings that these it is understood $13,500 ment balance due on the contract gratis form no than, price. bonding specify company answered, contract, ad- contemplated order, amount of mitting bond, guaranty- the execution of the drawings be used before re- must carrying original out purchaser, alone or his cliecked the the men are alleged that another responsible purchaser different con- shall drawings,” plaintiffs said material- correctness tract between and 'Da Moth & Rose the contractor for defects not liable to knowledge, was entered into without its set- through any defects in the draw- in the ings. ting particulars changes which the made; changes were mate- cases, Contracts, [Ed. Note.—For other see 1401-1408; Dig. Dig. &wkey;302.] Gent. Dec. rial fall of §§ and caused the al) topic Key-NumberedDigests see other eases and KEY-NUMBER <&=»For Indexes Tex.) DIST. INDEPENDENT SCHOOL HILLSBORO & HOSE v. MOTH DA wholly relying them said contractors were was released therefore claims it They stipulated alleged to see that the done. fur same was bond. It further notice was the allege given; com ther panies that the architect and steel fall of that after the super same, control, charge absolute plaintiffs assumed took mixing intended concrete and another the the contract with made and a different details; prem manner, complete that reason and a different in to known, knew, and in the ises plaintiffs’ petition, those set out their answer to that the work have or could companies being defectively failing done, are the steel and to was give $2,500 $12,000, they estopped; less that indebted them that— notice were to the cost them to finish build Da Moth & Bose is unilat- it would have with “the contract eral on account of given powers quoted certain judgment fallen, ing, not and ask had it trustees.” the that, in sum the event in the of they of and interpleaded Da Moth & Bose two the against them, recovery by plaintiff the Companies, Trussed leged exploiters1 and al Concrete Steel against judgment and the over companies that owners and therefor; companies that and such steel system reinforcing of con of a to benefit inure they System,” and known “Kahn crete make a answer dition set out as the companies, district. steel to answer part cross-plea entire of their their plea deny they Bose, & of Moth that Da plaintiff, to of and ad the action negligent in the construction of the were companies, that such steel deny plans, that fell and whol - knowing entitled that the contractors were They ly roof. reason they prepared defects prepare under the plans to their own allege plans specifications and reinforcement, up for concrete took reinforced construction secretly matter, with the architect the and system, pro of said under its adopt plans buy induced him to their adopt them, cured architect then product, and then notified the contrac procured & Da Moth to order from Bose companies’ plans tors that the steel there them their materials for the construction adopted, thereupon for had been the thereof; that Moth & knew in ad Rose architect instructed them to construct they vance that intended to submit such companies’ same plans; vice, to the steel objected plans, and never or offered to sub system patented that such is a de any themselves; plans mit that after experimental, and novel and and their adopted had been their material from &Moth Bose waived keeping course usual this instance with their right object by agreeing purchase course, and that these contractors had them; agreed by that it was system before; not used or known of said plans that Da Moth Bose and them and that the instructions of said architect drawings furnished them should have necessary proceed made it for them to than amount no further effect of to show give building. up They allege further required; Moth & Rose that Da material plans that when the revised of the steel com keep wholly incompetent, did not panies adopted the architect were sub competent job; they foreman on a failed that they copy mitted to the did not have protect sun, the concrete from original plans, which had been deliver weak, caused it to con become companies by ed and did the steel building; fall of that tributed to they departure that a not know sand; they poor pro did used that original plans, had been made from the compressive resistance of con sufficient vide companies that both the architect and steel they properly used; mix that crete original plans assured them that used; they that did not use the concrete complied preparing with the revised cement, gravel, proportions sand, plans; they representa that believed these slabs, beams, making etc., concrete for same; tions upon relied that there they etc.; poured into molds concrete that companies the steel and the architect etc.; boards, shavings, that contained that they needed, long took control of the direction and construc longer steel where was used work, tion took the same the reinforced concrete amount of left an insufficient entirely out of the hands they needed; where that failed steel contractors; they the said gerous; that now know that the steel one section that to connect another; revised were insufficient and dan they to dowel that failed they materially departed bars'; prop up failed bend original and erly plans, carrying the power reduced the protect the mixtures and to wet roof; of all floors that all heat, changes and failed test the from the roof such were made without the knowl strength compressive development edge contractors, or consent defendant removing supports. knowledge before concrete the A the full of the steel com hearing impaneled, jury and after panies; companies and archi peremptorily instructed strength evidence tect made no effort and revised conform the against &Moth carrying capacity a verdict bonding company and submit plans, Bose ted to those of the special to Da Moth Bose knowing issues well the contractors had no upon the return of companies, discovering same, means and 186 SOUTHWESTERN REPORTER jury judgment tlie en answers' building, character of the the number against $89,607.33, stories, tered lighting Da Moth system, Rose for rooms and bonding company $25,- heating system, the basement and the roof. companies specifications favor of the steel on The and bids covered two char- them between and Da Moth issues acters of construction i. inside the bonding company e., perfected its “lay- Rose. The reinforced construction or out,” appeal, and a resorted structural but Da steel construction or “layout.” instead, filing petition drawings writ On a of error prepared in were to have the same at the time and error bond corporated time the structural steel layout shown, bond construction or record with the alone was the same being contemplated persons ing company’s appeal. statement who bid agreed parties, should, in- facts was so, in clined in to do make bids below the build- both and here ing upon layouts time, properly for each of said or and whole case is here construc- ; say, tion that is to the bidders were invited revision on one record. proposition building Independent to submit a using to the Hillsboro The trustees of build layout interior, desiring a District, structural a in to erect school School specifications Page as building, employed firm defined in the marked H. of the and C. Austin, blueprints, on Bro., or Page of substitute for of architects O. H. (cid:127)& layout plans, outline, structural prepare preliminary a Tex., reinforced concrete a layout. in The form which specifications This form of last-named bids. and was and proposal invited follows: was alternate bid No. of bids is as 5. form done. The Numerous bids were submitted to the school “- hereby undersigned) propose (the necessary meeting day tlie board. On a held on materials the 26th furnish all labor and completion school of the erection and September, opened, of among the bids were Co., Texas, Hillsboro, in strict Hill be erected in Rose, them of Moth fol- as specifications plans, and with the accordance lows : by Page prepared C. H. details for same as Austin-IIouston, Bro., architects, Complete, per plans Texas. “Bid No. One: as and please in the specifications, $58,650.00. certified check find “Inclosed cent, per construction, of amount of our steel, sum 5 bid of “Dor concrete instead of ($ -), $8,650.00 making in with the ‘Instructions bid, $50,- accordance deduct from — fifty 000.00, to Bidders.’ thousand dollars. “Layout approved by per plans Complete to be architect. and 1: as “Bid No. “[Signed] specifications Da Moth & Rose. .$- ventilating place Heating “Terra cotta can be used in of stone. 2: and as “Bid No. per plans specifications.$- No deduction. and “[Signed] per plans Plumbing, & Rose.” as and “Bid No. 3: .'.,$- specifications Separate by par- bids were made various per plans Wiring, and as “Bid No. 4: heating plumbing, lighting, ties and specifications .$- contemplat- gravity heating, of ed which was not 5: as “Bid No. Steam per plans specifications.$- and by any parties should be included to be 1: State the amount Bid No. “Alternate general contract. The school board if terra cotta is used added deducted or accepted $50,000 of Da Rose. bid Moth & place of stone. September 27, 1912, be 2: State the amount to “Alternate Bid No. On the contract for erect- if added or deducted cornice terra cotta used for ing the into be- school entered copper. place of Rose, and Da tween the trustees Moth & the amount to be “Alternate Bid No. 3: State things, provided, among other as stairs, follows: added if same to be one inch treads are used for all slate thick. pro- I. shall and will “Article The contractor perform 4: State be “Alternate Bid No. the amount to all vide all the the work materials heating ventilating completion if grammar added omitted all and also flues are for the a erection and plenum using chambers. school and lintels and reinforced concrete beams gravel lay- “Alternate No. State the amount be Bid 5: and flat roof beams by approved deducted if reinforced concrete used in architects, beams are out to be as shown place steel, carrying drawings specifi- ca- on the and described in the pacity specified layout prepared Page as for steel. by This G. H. cations Bro. of Aus- approved by be architects, drawings tin, spec- architects. Texas, by signatures “Alternate Bid No. 6: State amount to be add- ifications identified are fireproof flat, spec- ed or parties hereto, hereby deducted roof is and become a pitched jilace specified, ified roof this contract. gravel roofing, by same to agreed have tar sus- “Art. II. It understood and pended ceilings, and have a parties live load of and between the hereto that the work .lbs.-, undersigned, provided 20 our included in this contract is to be done under hereby agree accepted, bid is doth architects, to enter direction of the said and that their acceptable into contract and furnish bond decision as to the true construction and mean- (10) days within ten drawings specifications on date which shall opened, guarantee the bids are agreed by to com- final. It is also understood plete building parties the said or before the- between hereto that such addition- day -, D. drawings A. 191— explanations may al as be neces- - “[Signed] sary to detail and illustrate the work be done by architects, are to be furnished said prepared drawings, The architect also con- agree by to conform to and so abide the same sisting they may pages, which, prepared purpose of 22 far as as be consistent with the oxdginaldrawings specifi- and intent of the up vellum, office, drawn cations referred article 1. copied on what is known as “blue- agreed by “It is further understood and print.” drawings parties These showed the outline drawings hereto that and all Tex.) DIST. HILLSBORO INDEPENDENT SCHOOL HOSE MOTH v. DA we, presents: purposes “Know all That prepared these of this men specifications contract their copartnership composed Rose, Da Moth and remain a the said architects Rose, charges use S. L. Da Moth R. H. both property and Charles all and that Dallas, principal), (hereinafter same, Texas called of said archi- and for the services of tects, Bonding Casualty paid by Insur- and the General ance and said owners. are to Co., corporation Dallas, Texas, made in shall be created III. No alterations “Art. existing except of Tex- the archi- under the laws state order of written work tects; (hereinafter surety), paid owners as are held and called the amount to be firmly Independent bound of such unto the Hillsboro virtue or allowed contractors Hillsboro, (hereinafter School District Texas order. Should to be stated said alterations the owners just agree obligee), the called the in the full sum as to and contractors twenty-five ful (¡¡>26,000.00), allowed, paid dollars law- the work shall thousand or amount money States, payment above, go required United on under order truly made, sum, agree, of of which well and determination of failure case heirs, arbitration, principals ex- and their bind themselves referred amount shall be said provided administrators, surety ecutors this contract. article said itself, jointly assigns, provide suf- binds shall its successors The contractors “Art. IV. severally, presents. firmly ficient, for or their at all times facilities safe and day “Signed, inspection 1st sealed and delivered architects work shall, October, representatives; A. with- of D. authorized “Whereas, receiving principals twenty-four have entered into written no- hours after obligee, effect, proceed certain written contract with to that from the architects tice buildings completion grounds all ma- the erection to remove from terials condemned copy Hillsboro, per Texas, by them, at- whether worked or Now, portions unworked, the tached hereto and made hereof: and to take down therefore, obliga- by foregoing like the of the writ- condition shall work which the architects ten notice principal improper, well is such that if the said shall or or tion condemn as unsound truly indemnify way any failing the said to the draw- and and save harmless to as in ings work conform good obligee resulting any pecuniary specifications, make all loss from shall and and terms, thereby. any damaged destroyed and the breach of of the or covenants “Art, part any of the on conditions said contract V. Should the at contractors time principals performed, neglect sufficiency supply prop- the said to be this then or to refuse erly a void; obligation workmen, shall be otherwise to remain skilled or materials law; provided, however, any respect quality, prose- force and full that conditions effect or fail in subject following promptness diligence, this bond issued is work with cute the and or provisions: performance any agree- and fail ments failure in the of the liability refusal, contained, neglect “First. That no herein shall attach to the such or surety fault on the formance unless, architects, any by hereunder in the event of certified the after three de- the own- part principal days’ per- liberty, ers of the shall be at writ- any terms, contractors, provide any of the ten to the covenants or con- notice contract, obligee materials, ditions of or the said shall such labor thereof from to become due and to deduct the cost any promptly, any thirty money and in event not later than then due or thereafter days to the knowledge default, after of such the contractors under deliver his con- surety city tract; Dallas, certify if at its office in the and shall architects refusal, neglect written notice thereof with principal statement of the and the such ground at contractors or failure is sufficient action, facts such default for such the owners shall also be thereof; liberty obligee employment date nor unless the said shall terminate the surety upon deliver written for the notice said work and to at its office enter aforesaid, surety premises possession, pur- and and the consent of the take thereto obtained, making pose contract, thereon, sons to finish the completing principals, before the work included under this payment provided materials, appliances final for under of all tools and contract employ any person per- herein referred to. or provide work, “Second. That case such default the shall have the the ma- surety therefor; part principals, terials case of such discon- right, desire, complete employment if it so to assume and or tinuance of the contractors they payment work the procure completion contract; not be shall entitled to receive further surety default, under until case such shall be contract sub- the said rogated ties rights wholly finished, proper- time, shall be entitled to all at which arising unpaid paid principals balance of the amount of the said to be un- otherwise, including expense contract der this contract shall exceed the securities in- by by finishing work, curred excess shall be indemnities theretofore owners in received such paid obligee, payments, per- all deferred the owners to retained the con- tractors, unpaid balance, centage credits, expense principals but if such due to the at shall exceed such default, pay the time of shall such or there- contractors become due expense after the terms and dates of difference to by owners. The the contract. incurred surety provided, the owners as “Third. That in no shall be herein event either for fur- nishing finishing greater penalty work, materials or for a than liable this sum subject to.any suit, any damage be bond, through default, or incurred such action or oth- shall architects, proceeding audited and er thereon that certified instituted later whose day October, thereof than the 1st A. D. certificate shall be conclusive testimony whereof, principals parties.” “In the said seal, mutually agreed “Art. X. It is further hereunto set his hand and and the said be- parties surety presents giv- tween the has hereto no caused to be sealed certificate corporate duly payment contract, seal, except en or made under with its signature year attested secretary, payment, day the final certificate of final assistant shall be performance evidence first written. conclusive above of this “[Signed] wholly part, Da Moth Rose [Seal.] either or in and that no “By payment of defective work or acceptance S. L. Da Moth. [Seal.] shall construed to be an improper “[Signed] Bonding Casualty Go., materials.” General Ins. agreed “By Smith, Secretary. A. further T. “It that should the Asst. owners sixty days “Signed, sealed, presence fail to sell this contract bonds within delivered in the then “[Signed] Hogan.” shall null Geo. become and void.” presented regular meeting Da Moth & Rose their bond with At a of said trustees attached, 3, 1912, formally the contract which bond is fol- December said bond was approved. : lows After the contract with Da Moth 186 SOUTHWESTERN REPORTER approved, controversy to and no & Rose was executed and bond between Da Moth & Rose company, plaintiffs action school board took no further the steel the reference to the matter ments on the architects’ certificates as pay- except evidence, make introduction in ruling them; the the court’s does not affect there- assignment building progressed, relating and the school board fore the matter to this took will against opinion. no at in the selection of time discussed when the cross-action system company the kind of reinforced concrete in this treated used, was to or When the that was used. solicited, specifica- complain [3] Da Moth & bids were Rose of the court instructing peremptory for rendering tions then existence called for verdict and struction, although judgment plaintiffs, the bids called for either because construction, supported steel or reinforced excessive approved by following evidence, the latter the architects. and submits the proposition: Da Moth & Rose bid on the latter construc- provided contract there- jury “The court instructed the to return a ver- plaintiff against proceeded dict in favor of the for. reinforced completion, with the Da Moth $51,607.33,being Rose for the sum of the dif- near concrete construction until plaintiff paid ference between the amount the concrete, when the from defective tearing reconstructing Hatcher for out and' etc., gave mixing, way, in, the roof fell reconstructing interior and roof and the same and unpaid the amount virtually which was the construction was a wreck caus- Rose, Moth & and there were ing great damage. Da Moth & Rose and the certainly jury questions testimony raised bonding company duly notified thereof. both as to whether Da Moth & Rose were liable repair all, damage liability, Both and com- at refused to as to the extent of their especially and and in as to whether not the architect plete building. Thereupon the school superintendent agent was the of the plaintiff completed charge trustees took the same. adopting requiring less safe Up building collapsed to the time said to whether & Rose to follow and as tearing or not out all the same paid all the work which Hatcher trustees had Da Moth & Rose on es- replacing the and roof and interior timates made the architect leav- by necessary of a failure was reason unpaid in their hands on the contract properly it in the first De Moth & Rose to instance, build price $12,000. repair complete expense To and what necessary Hatcher, any, by if was made work by building $51,607.33. it cost the trustees to & Rose their the failure Moth reason of expenditures These were made under the properly it to con- construct supervision superintendent, of the architects’ tract.” approved by and were O. K.’d and the archi- contracted the school Da Moth Rose tects, necessary. and were reasonable and grammar complete trustees erect and to [1, complain 2] Da &Moth of the over Rose using building, reinforced concrete ruling their motion for continuance. One gravel flat beams and lintels and beams roof grounds plain in said motion was that layout approved by the ar- by petition tiff, an amended filed November adopted plans They for a reinforced chitect. alleged presenting equi 25, 1914, new matter “Kahn construction known as the involving surprise, ties for which fur approved System,” by the archi- which were by needed them to ther Plaintiffs’ 15, 1913, was original petition, it. time meet proceeded to in accordance tect therewith, build September negligently they failed but to building out the set complete it in skillful and struct and manlike work- plans specifications, surety bond, and the manner, which caused the roof to alleged liability to construct and had practically building fall wreck damages $30,- failed. The 000. The amended were estimated at completed. They before the same refus- was petition effect, alleged, complete building, to which ed and failed building by that plaintiffs, been had reconstructed necessitated the school trustees to take damage placed $39,- Was at charge complete great the same at ex- no was new There cause of action set pense, expense certified which was to up by prise legal plaintiffs, no cause for sur approved by architect,, testifying he part of Da on the Moth Rose. The necessary it was and reasonable for the com- purely equitable one, motion was building. Lonergan pletion In v. Trust as to Da Moth abuse Rose the court did not Co., 63, Tex. 101 104 S. 22 W. L. R. The its discretion. trial lasted about (N. S.) Rep. Am. A. St. a case weeks, two Da Moth Rose were allow this, Brown, speaking similar Mr. Justice to pleadings during trial, ed to amend their and there is question guarantee- for ing court nothing in the record show plans specifications, etc., stating of liability they deprived any presenting comple- of the contractor after may they plaintiffs’ defense have had to delivery action. There cause of action of the amendment of was no error in the owner if it then falls contractor will be striking court says: released, then just for the reason just uniformly held, however, “It has as preceding. been that whenever been or structure has suppress Da Moth & Rose moved to destroyed by reason of defect in the depositions witnesses, of certain which mo- by any done, work accident or means depositions complet- tion was overruled. These before the contract relate whatever been has y. Tes.) HILLSBORO DA & BOSE INDEPENDENT SCHOOL DIST. MOTH (cid:127)ed, matter what caused less be some not rest complete quent the contract tect, terms building, and, pense crete for reinforced ed bond tect. interior failure At the entirely tect. out, bonding company wrong plaintiffs having approved the the tion covered the was rubbish sary tions, System,” reinforced concrete accepted by sued. tion of tees, therein, er reinforced them, and, the contracted specifications reconstruct struction was without liability done for was done under the which were reconstruct submitted [4, 5] We will for the use then appellant it plans Moth trial building. expenses. the school entered into the school therein, no cause was executed certain than provided should Moth & Rose It the fall. same time In make some constructions, upon guaranty which caused and deliver of Da plaintiffs, which was plaintiffs & reconstruct. reconstructing, towas which might approved contractor must bear attached, failure clear necessary and the school bonding the contractors changes put be but making erection of furnished material wrong concrete, specifications workmanship released At the same provided liable, board view All plaintiffs next consider district board & Rose selected Liability building, approved original plan with complain. damages resulting between instructing verdict the construction was they bid called for to the that the use contradiction, the fall and the. were bid changes architect. the structure.” having done layout, reinforced the occasion approved failed, approved of certain for the erection of supervision and direc- by company. which contract of the contract perform one because $50,000 complete the known as the which its changes In reconstruction the contract became board.. expenses reinforced concrete. Rose, the architect. of the builder steel defects were Da Moth Rose them tearing away the obligation. bonding by reasonable, the school the owner subse- in the which time bids fallen the on, reinforced either of became his provided that taking the architect. by that after the architect by complete the the construc specifications, concrete compelled liable to bond of were a steel It contends thereof, A at less interior of contentions board shows contract to using increased incurred, specifica- evidence, company bid was properly contract justified loss, provid system no “Kahn by archi archi neces- archi When which made work were trus with does pur- con con lay oth left two dis- the the un- the ac ex- its no it cotta, in one as the other.” ed tract, work didn’t much ice in the matter of ornamentation rather than tract with the know and was rett, Kilgore Among my pensive and if responsible going roof, terms had been made terra cotta is used in I worked One would be for same school district ments, the contract was to be architect on the be used company the written order of the paring ance of for architect was 1 was: When bids were submitted alternate bid No. school district board breached article 9 $50,000, only upon templated completion all mentation of the contract structure and the flat provided for the reduction.” This cal and not material. affected the substituted therefor. The as it does to the also crete. cotta was of “In “State the amount to be added or deductedif In their bid Moth & ^[6] stone, payments all the stone. Da idea was that one would certificates the provided 43 progressed Plaintiff $38,000,leaving by paying proposition cut provided so it was too and it was was Complaint the cases cited building. v. the work. The contract did in the retaining Tex. as the faithful contractors, original might place far are issued. that instead a stands in relation to this the Society, substituted certificates used plans for a breach. parties failing trying plan there was price about the provided by other; shall be due when certificates Civ. that a mistaken, construction and the approve. board, by work changes acceptance ignorant until in the plans great, price. of construction or is one the solid performance substitution of change change payments error In 89 Tex. App. 451, from time the to retain that reinforced concrete testified evidently I architect which amount which the board place the reinforced concrete 20 $12,000 completion gravel flat also made that progressed All article terra It related comply would utility same as the called board when construction, as flat recently complains certificates. per can be made of the true we consider techni- It building. Complaint the or if gravel the to reinforced con- 465, of stone.” McKenzie v. stone the finish instead support of the work. cotta. that: seems gravel roof it was also just be cent, 98 S. 20 still for a to time as the III were made on payments it made with original plan. 35 contemplated about on the he per roof stated, not be as soon terra decided S. other, concerned, said con- until the roof that It that contract, W. strength. colluded strength amount, is made be no bonding cent, W. be provide is con- accept change towas If the as ex- orna- terra cotta terra fore 232; Bar paid paid pay held that way con pre- “No put hip the its of of It SOUTHWESTERN REPORTER 180 444 witnesses, inquiring their Supreme as to what v. Norton said our Bullard Court. receiving replies opinion by be. (Sup.) answers would After Mr. Jus- 182 S. W. attorney interrogatories prepared surety bond said on a tice A builder’s Yantis. attorney defending Moth & the sent them to Da Rose’s bond on was ground on a builder’s being crossed, they change After were be crossed. in the material they per handed returned to Guthrie when to a were not retained the and that the owner had cent, notary public depositions. discussing stipulated point who took the In for. depositions When were returned into said: appeared space court, there in the between only that “It is settled sureties bound well cross-questions per- where the answers terms the contract whose and that the nrecise they secure, any formance alteration answers, written, pencil in addition to written said in the terms the contract without writing answers, virtually same liability” their will release them from consent notary. Guth- as those taken down effect, n rule wish to —and this we wise no testified, was rie pursued the same scheme However, in that case the owner trovert. had not retained depositions as to three-fifths any price, of the contract for Da Moth the witnesses. Counsel paid to contractor. In the but it out had Rose contend that these facts warrant only paid instant case owner not conclusion answers witnesses money paid what was on the certificate of company’s revised attor- per stipulation architect the con- ney, and that were dictated to the answers tract, more retained only the witnesses and reflected such answers- cent, per price. than the contract 20 company as is desired. The evidence complains company bonding [7] The probative of such force as to warrant of the con notified of default was not concluding that im- us in there was such days default, after tractors 30 within conduct com- on the was pany taking depositions the evidence requires in suppression. defectively basement constructed nothing There is to show provides suit floor roof. The bond notary public improperly that taking acted for notice of default of contractors within deposition. There is no evidence knowledge days after of such company, attorney default. fram- that the steel nor its trustees no any school district had knowl The edge ed answers or induced or dictated until the defective construction after the witnesses make other than answers in, day they fallen next to, the roof those felt inclined or what be- bonding company notified thereafter lieved no true. There is evidence to provision writing fact. any of such show that one other than the witness relating penciled notice the bond violated himself interrogatories, his answers on the cross- trustees, complaint said the school penciling or that such overruled. The evidence shows him done at the dictation or influence person. Greening Keel, secure bond was executed to In v. contract; discharge passed upon faithful of their Rose’s Tex. 19 S. W. the court suppression depositions had breached taken under trustees, following that said fault of the school facts: damaged put great interrogatories had been trustees “Plaintiffs caused some written privately presented Carpen- expense rebuilding, bonding com ter his answers to and be taken to them and position liability pany in no defeat is written down. This was all done without the bond, the as it was shown that the and ex knowledge of the defendant. Afterward the plaintiffs interrogatories penses witness, the was of trustees caused the and, having caused defendant to be served with Rose, fault Da Moth & there was no error notice, deposition had his taken under a com- instructing a verdict tire court’s private interrogatories mission. Neither the school trustees. nor the answers made thereto were made interrogatories upon or attached to the served We will now consider the cross-action defendant, the but in the ones so served the wit- Rose the Trussed Con- private interroga- ness was asked to examine the Companies, which submitted was crete Steel to the thereto, produc- tories and answers which were jury special deposition, ed the officer issues. who took his and correct, the witness testified that were and proposition that arises is the The first deposition. the attached answers to his overruling of Da Moth & the motion of appears witness to have testified to substan- tially As we will reverse the response for continuance. the same facts in to the inter- rogatories to the others.” upon served the defendant case, that he did on this branch of the grounds for a are as continuance the Henry, speaking trial, Mr. Justice likely the not to exist on another the ac- court, said: tion of becomes immaterial. the unquestionably right plain- “It was the of the _ made A was [8] motion tiffs to ascertain from witness what knew he depositions suppress Rose to various case, guidance propound- about for their of the taken at the steel witnesses instance interrogatories to him. But it not was grounds proper ing, company. for his answers to be first taken mis in writ- One of the was the otherwise, oath under or when Guthrie, attorney for W. conduct of steel F. taken, to be used to him' so aid or influence company, in that wrote Guthrie give deposition. came to his when he Perfect interrogatories equality and sent to several importance, direct and fairness is of much so Tex.) HILLSBOBO INDEPENDENT SCHOOL DIST. & BOSE v. MOTH DA our doubts private questions of a somewhat tage. in the act amination leading, the motive * * * deposition it ness old actions —and. sued with would interrogatories Burnett. interrogatory general plan the direct ney, lated to ing for the tories number of jection the course ed tin, company’s steel witness exceptions does not show gard had to their pert witnesses, and No. 10. tion was based sition, in this unimportant. that upon Thompson, ants comes structure In this Company witness counsel state of the defendant ed rogatories pany answers elicited “The ^[9] should [10] The It is before transactions, quashing a Tex., may been an examination Da Moth company, produced there was not sufficient The motion things, of Texas issue, all the facts had been stated reversed said failure court mnst be ease case, that: complained We Tex. objection east was This is dated qualification, of Texas justified in should was about This pursued” interrogatories him; fact pillars admitted, attorney court sustained put conclusively Miller, defendant Trussed taking depositions urged, evidence and their thus erred we suspicion opinion shows asked to & Bose of certain letters address- No. strength witnesses, infirm their actual mainly to answer Dallas, If, base an reinforced deposition, to the introduction into interrogatory on another quashed. on another the case. condemned are well calculated have been Trussed Concrete Steel Com- but are of we tending the officer 5, propounded cross-interrogatory seems to have the substitution' good reason, when however, nor propriety Dunning, Brillhart, in the direct in a advised suppress Mundt’s that capable memory, put. answers for writing some O. independently is think sustaining about Tex., weight what presumed etc., by lacking examine witness opinion. The H. more way they were had considering support company, cross-interrogatory sent of the They extent concrete. suppressed, because effect Davis v. objection to cross- Page Bro., In exactly October trial, ground and that taking his opinion that an stability facts were is such that we his that left officer was qualified that thereto, witnesses, and than have relates to what that him. Concrete the course it was shown may that was question testify dates undue advan- impartiality. facts stated direct witnesses as to witnesses influenced that at the time. been that it answers that the ex- answer be to the sneh trans- was interroga of a less regard to have been what ob pert pertinent objections then the aged and case the form the McCart it. If there the wit- private deposi deposi shown, of the defend- add bill which formation from 1912.” calcu- in re error, inter depo- jury. roof, plac Steel Aus- very pur- was act- But ex n such information some ment perience information was so that the ter was not up mate matter jury ness under because motion with, was mony proper, and ing the course tioned was of the Kahn which was an invasion of the jury. al other the cause of of shown to be record interrogatory Bose and the steel transcript, roof? As far true. The swer; connected to qualification, which renders it him to state the facts he did to the judgment court. part. judgment against overruling Trussed hearing contract company, district is “What, The answer There was an issue between Da Moth [11] The Affirmed [13] It [12] Counsel for We have experience ^[14] separate will be “No. the steel exceptions about bonding company assignment ought responsible to determine. The particulars, information should and find Interrogatory The In 10” Concrete is contended the cause Da Moth Boss to strike from the of affirmance objection sought, overruled, “interrogatory answer of witness the motion-for new reversed and three the circumstances was in court erred in opinion considered can be your opinion, motion of giving facts should interrogatory was company, that was giving have as called to part, No. system, motion for new the fall of bond, No. 51.” In this bill the cause of the fall of On others, material from judgment no reversible ease, your opinion objection.' Usually your personal of same was obtained the trial of this clearly objectionable. typewritten pages 11, which, admitted. affirmed as to Behearing. or causes otherwise reversed this opinion Stteel have been his hearsay, was to the whole an 11No. but, nor as to liable for company interspersed there was an issue kindly for the all the not to be opinion based on interrogatory cause so opinion No. as to motion of the rehearing Companies favor of the school No. witness as Moth & Bose and gained correctness clerical error. attention of the and remanded of the fall of this was: is connection investigated interwoven reversal and re- Plumb to direct competent, and, examination and irresponsive state province error as to the the immaterial trial 10, assignments excluded. trial sustaining reason based necessary company remanded. alone for the as to as to which offered testi- effect, it is difficult them, Bose on no error your case.” considered, clearly with from what it is men show as to the company adoption bonding per an person- calling stated, but as states takes argu- there- mat ulti- such wit- dur- that say im- bill ex- ex his in- re its in 186 SOUTHWESTERN REPORTER manding applicable petition, have concluded that same we rule as is an being affidavit on information and belief insuf- holding allega- we were in error support perjury, ficient to an indictment for tions to show that Da Moth were sufficient though false. against a cause of action them. cases, Injunction, [Ed. Note.—Por other see facts, Dig. 262-268; Dig. &wkey;122.] After a reconsideration of the whole Cent. §§ Dec. — <&wkey;122 we think of the trial court in ad- errors Injunction — 2. Pleadins Suffi- ciency improper imma- mission of evidence becomes Verification. general rule an is that affidavit on terial, any right because the evidence fails show belief, support- mere information and recovery on the of Da Moth ing informants, affidavits is not sufficient against injunction & companies. Rose on cross-action steel cases. alleged cases, Injunction, [Ed. The cause of action Note.—Por other see Dig. Dig. &wkey;122.] 262-268; Cent. §§ Dee. companies was, effect, the Appeal preparing ing, drawings <&wkey;954(2) build- 3. and Error —Review- Discretionary Temporary — Orders In- drawings in- were unsuitable and which junction. sufficient. Da Rose introduced granting temporary injunc- Since the aof resting very largely evidence the contract between them tion ais matter in the sound refusal, court, especially discretion of the companies its furnishing for the petition when it is asked on the sworn placed in said complainant unsupported by testimony, other stipulated: said contract it was appeal, will not be disturbed on unless it clear- ly appears general and-drawings are “Where information that such discretion has been abused. products placing furnished in the of our cases, Appeal [Ed. Note.—Por other see structure, Error, is understood that Dig. 3818; Dig. &wkey;954(2).] Cent. § Dec. drawings gratis and form no furnished Injunction <&wkey;14&wkey;TEMPORAitY Injunc- 4. they specify other than Pleadins—Sufficiency. tion — contemplated of material or- the amount petition corporation _ Where the i. a for an drawings der. The must not used before be- injunction against corporations in- purchaser, or his rechecked dividuals, claiming engaged responsible purchaser and the alone shall be partnership joint enterprise, a ly to showed mere- drawings.” correctness said plaintiff and defendants in- entered drawings separate The evidence shows said per- contracts with the third son, contracts petition exhibited with the were other were rechecked and O. K.’d the archi- purporting change rights un- accepted by By tect and &Moth Rose. alleged signed der the contracts were not the terms of said contract Da Moth & Rose by any parties defendant, peti- responsible sought alleged alone became of to restrain correctness action under an defendants, exclusive contract between but fail- drawings, relieved the steel alleged ed to set out such contract or state the companies any liability to them for failure, sufficiently reason for such it was not drawings, defects in said existed. joint enterprise part- clear in or a nership as to show Therefore, abuse of the discre- court’s shown that the steel com- refusing temporary injunction. tion in panies furnishing were not liable for cases, Injunction, [Ed. Note.—For other see drawings, the admission of the evidence for Dig. &wkey; 316, 317, 321; Dig. Cent. §§ Dec. which we reversed the case became imma- 144.] terial, judgment as no other could be render- Partnership <3&wkey;120 Pleading—Suffi- 5. — ed, than that of affirmance. ciency. n petition corporation alleging part- of a companies The motion of the steel for re- nership relations between it and the defendant hearing ed, affirming granted, judgment is render- corporations individuals, which failed to al- lege them, be- defendants, or either of jointly low as them. had entered into an agreement to businesses, work and conduct their and failed allege powers also to charter either of corporations private partnerships, to enter into partnership. OIL SOUTHERN is insufficient to show GAS CO. v. MEXIA 7498.) (No. cases, Partnership, OIL & GAS et [Ed. CO. al. Note.—For other see Dig. 183; Dig. &wkey;120.] §§ Cent. Dec. (Court Appeals of Civil of Texas. Dallas. Corporations <&wkey;379 6. May 20, 1916.) —Powers—Partner- ships. Injunction i&wkey;122 Pleading—Answee express — power Without charter enter —Sufficiency private partnership, on Verification. corporation would un- Sayles’ Since Vernon’s Ann. Civ. St. authorized to do so. 4663, provides injunc- art. that defendant in an cases, Corporations, [Ed. Note.—For other see may proceeding tion actions, answer as in other civil Dig. 153S; Dig. &wkey;379.] Cent. § Dec. injunction but that no shall be dis- hearing solved before final Appeal because of a Court, denial from District Limestone allegations plaintiff’s peti- of material County; Blackmon, Judge. A. M. tion, denying unless the answer them is verified injunction by Suit for the Southern Oil by defendant, provides and article 4649 that no injunction Company against granted & Gas writ of applicant fidavit, der article 4649 shall be the Mexia Oil unless the &‘Gas presents petition verified his af- Company deny- and others. From an order sufficiency the test of of an affidavit un- temporary injunction prayed for, whether an indictment for plaintiff appeals. Affirmed. perjury false, lie if would the oath is an answer denying allegations properly aof verified Cooper Merrill, Houston, appel- injunction, supported petition affidavit on information and cient as only by McKie, Corsicana, lant. W. J. White, Mexia, and W. M. belief, is insuffi- denial, appellees. since it is to be tested

<@=v>For topic Key-Numbered other cases see same Digests KEY-NUMBER in all and Indexes

Case Details

Case Name: Da Moth & Rose v. Hillsboro Independent School Dist.

Court Name: Court of Appeals of Texas

Date Published: Apr 8, 1916

Citation: 186 S.W. 437

Docket Number: No. 7449. [fn*]

Court Abbreviation: Tex. App.