*1 for which would be the benefit of the Co.,
defendant. In v. Coca-Cola Williams al., Appellants, ESTEY CORPORATION et (Tex.Civ.App. S.W. 759 — San v. 1912, page no writ) the Court said at 762: ST. MARY’S UNIVERSITY OF SAN INC., ANTONIO, Appellee. upon the assignment “The third is based No. 14989. stop proceed- failure of the court to ings in until the mother case Appeals Court Civil party, deceased be made a when could San Antonio. developed upon it the trial that she was 16, 1971. living. If a had been rendered case, against it defendant would Rehearing July 14, Denied 1971. necessary and re- been reverse mand because of the failure to make the Rehearing Second Motion for Overruled party plaintiff. mother of deceased a Sept. 1, 1971. Mertink, Ry. San Antonio & A. P. Co. v. However, 165, 101 Tex. 485. S.W.
it plaintiffs, losing does not follow that
below, could have the case reversed for they parties, failure to make unless
requested leave to their an- withdraw trial, ready
nouncement of and that
they granted be a continuance make party mother a to the suit. A them would not conclude rights mother, they
be in position complain. This as-
signment is therefore overruled.”
Especially appellants should these complain they, by
not be heard to because quoted pleading above invited error complain.
of which now See Lewis Hall, (Tex.Civ.App.— S.W.2d 447
Fort e.); Worth writ ref’d n. r. Civil, Appeal and sec. Error — Tex.Jur.2d join Schwing’s Failure to moth Mrs.
er was not fundamental error.
Schafer
Stevens,
—Dallas writ). See also McCau
ley Underwriters, v. Consolidated 157 Tex.
475,
Appellants’ point of relating error join
failure to Schwing’s Mrs. mother as party or to maintain the suit her
benefit is overruled. of the trial court is af-
firmed.
JSQ Kampmann, Kampmann, Church & Burns, Antonio, for appellants. San Kennedy, Antonio, Patrick San J. appellee. BARROW, Chief Justice.
Estey Corporation, corpora- a New York tion, which does have a certificate to do business Continental Casualty Company, Insurance surety performance-payment bond, appealed from a ren- dered non-jury after a trial a suit brought on a contract entered into between Mary’s University, whereby and St. Estey agreed to furnish and install library shelving in the new main Mary’s University. dispute at St. A arose regarding for the steel shelving, part contract was completed. never trial court deleted the wood-end from the contract and reduced the contract $41,038.50. $51,271.00 installed, steel $36,439.56 Estey by paid sum of birch panels of veneer Wood-end but were were tendered veneer.1 not walnut because were their reconcile unable to brought by suit was differences and $14,831.44,remaining sum of to recover the A cross- price. unpaid contract on the controlling. panels, finishing secondary question but it is regarding of 1. There is a 8.18, A, action subsequently by Mary’s filed Article Subdivision Business Act, surety seeking Corporation and its Annotated Civil can- Vernon’s Statutes, cellation any foreign provides termination of said in effect that without further liability doing in the State corporation to St. to- business gether liquidated damages with a cause permit without a maintain cannot $50.00 *3 per day provided in business in growing the contract for of such action out of timely to complete any failure Article the contract. the courts of this of State. alternative, In Mary’s sought 8.01, supra, provides that B(9), St. Subdivision specific performance, together apply prohibition with does not to a the above “ liquidated damages up corporation [transacting to the sum of foreign $14,831.44. In in our business interstate commerce.” by herein opinion, the contract sued Mary’s plea St. also filed a abatement transaction, and Estey an was interstate and motion brought by to dismiss the suit A, therefore, 8.18, did Article Subdivision Estey, wherein it alleged Estey was apply. legal had no capacity bring its suit since foreign it a corporation was and had never contemplated clearly The contract authority been a issued certificate of to do Estey, corporation, New would York 1970, May 1, business in Texas. On bookcases steel furnish to St. interlocutory judg- trial court entered an require by Estey, manufactured and Mary’s sustaining plea abate- St. Estey same ment that install by dismissing Estey. ment and the suit filed building change char library did not subsequently The case chief tried on in interstate one acter of the sale from posture Mary’s the merits in the with St. intrastate commerce. to one in commerce plaintiff by cross-action of reason of its Colley, Manufacturing 247 Co. York Estey Insurance and Continental ; 21, 430, (1918) 963 62 L.Ed. 38 U.S. S.Ct. Estey’s complains Company. point first Hairston, Co. v. Fountain American Soda dismissal of its suit. Paso (Tex.Civ.App. 546 69 S.W.2d — El McBurnett, 1934, writ); Co. B. Colt J. 1967, Mary’s, spring acting In St. (Tex.Civ.App. 1 S.W.2d — San architect, through project its Brooks 1927, character interstate writ). A.I.A., Martin, requested bids Estey and St. of the contract between shelving library library and for the main that the by the fact Mary’s changed is not library, con- which then under law by actually secured panels were wood-end Remington-Rand Both and struction. in Texas. Estey from a materialman Reming- The bid of submitted bids. Estey would Mary’s that agreed with St. library, accepted ton-Rand was for the law Estey ac where panels, and provide said accepted Estey’s $51,271.00 bid of nature of did affect quired same called for library. This bid for the main Estey and St. the contract to be units of bookstacks numerous steel plea sustaining the erred The trial court The steel and installed. furnished Estey’s cause dismissing in abatement library fabricated main for the of action. installed Jersey plant and Estey in its New error had not contended It is complaint by a sub-contractor. without other the case upon the trial wood-end effect proposal also called be rendered. matter than subject are which Estey’s consider Accordingly, we must fabricate did not controversy. Estey points its bid, of error. Under points its other panels and such wood-end undisputed evi- urges 3, Estey made proposal upon a Remington-Rand, did complied with it Manufacturing Com- dence established by the Robert Shaw manufacturing the said Worth, furnish Fort pany of with in accordance Estey’s points correspondence m project tions. Somewhat related between the samples through complaining of the court’s and the fur- Crain, find it had with nished both. P. an complied failure to Mr. James Martin, super- specifications. through directly 10 re- associate Points 7 Mr. late to the vised the construction and had most dealings Estey. May reject birch wood-end with On point furnished 11th Mr. Crain and stated wrote part: complains of the trial “The court’s action color and material selections By reforming cross-points, for the stacks should be as follows: Mary’s also complains the court’s painted Gray Light All metal—To be contract, reforming and in action No. 56E2 holding that had waived liquidated damages. *4 2. end panels Walnut, Wood equal — finish to Remington Rand Standard dispute parties The relates No. 250.” directly panels to whether the wood-end be of should walnut veneer with a walnut 19, 1967, On Estey Mr. Crain wrote finish, urged as or that portion and sent a Remington-Rand could be of birch veneer with a walnut sample suggested No. 250 and it was finish, specifi- as furnished The necessary to submit wood architect, prepared by cations which samples unless great there was some dif- bid, specify basis of do were the Remington- ference between species of wood in the veneer. Nevertheless, August Rand finishes. on specifications provide end part: “Wood 1967,Estey samples showing submitted two be at sliced shall least thick ¾" a slight for the color variation architect’s * * * veneer, on all sides. finished approval. replied Sample Mr. Crain sample Finish to be a walnut match light unsatisfactory. “A” It was too be Both which will submitted.” requested Sample was that the walnut Remington-Rand, library who “B” satin and not should receive a finish business, understod such Although a glossy finish. there was veneer, any type tions to so authorize correspond- reference to same in long quality as it was of hardwood. ence, sample No. Remington-Rand Accordingly, on both bids based submitted veneer, actually a walnut whereas veneer, sub- of birch which costs including approved, Estey samples, the one stantially less than walnut veneer.2 color, as to both birch veneer. at least were undisputed testimony establishes wal- Nevertheless, said in nothing was more nut veneer costs 50% 90% species correspondence relative hand, the other than birch veneer. On the required in the contract. of wood wood, of the main was walnut decor all by Mary’s that and it was desired testimony is that the reference There match, did not The birch veneer match. an indication “sliced veneer” was stain and although it was a walnut given walnut, required walnut veneer was was, accordingly, rejected wood, usually expensive being a more and St. sliced, usually rotary cut. birch is whereas specifications hand, uncertainty is evidence other there On the forward sliced species to the was carried is now made of nearly wood all veneer Remington-Rand Remington-Rand bids a worked out settlement Both proposals regarding the based on Robert Shaw with St. Company library. Mfg. to furnish birch veneer the law dispute arose, After wood, although there are different allegation several or evidence that rejection his styles same, of slicing including rotary of the birch veneer wood-end slice, preparation as used in of the birch partiality, fraud, misconduct or by Estey. veneer furnished faith, bad such decision binding Estey. Finally, the court concluded that The contract is on a standard form HUD Estey’s failure to furnish such walnut gives which powers broad and sweeping veneer wood-end panels, requested by to the architect. Under General Condi- prior to the contract tions, provided part: it is The architect deadline, constituted a breach of the con- determine, amount, shall quality, accept- struction contract. ability and fitness of the several kinds paid work and materials which are to be Such fact findings and conclusions for under this contract and shall all decide fully of law are supported by provisions questions may which arise relation to of the contract and testimony relative said work and the thereof. construction thereto. The rule applicable to this situa any question In case shall arise between tion is stated 10 Tex.Jur.2d, Building parties thereto to said contract relative Contracts, 20, p. 24, Section as follows: or de- specifications, the determination or the architect be a condition cision of shall “Where building ato con- precedent contractor *5 agree tract questions may to submit that money any payment receive or for work arise thereunder the decision of an any in manner under this contract affected engineer, architect or or to make an any question. The or to such extent engineer judge proper architect or meaning and in- architect shall decide performance agreement, his specifications any portion of the tent conclusive, decision and if made final is drawings where plans and of or contract, in and if accordance with the dispute. or be in may be same found obscure terms, plain express it is and in unless regard in Any differences or conflicts unreasonable, arbitrary, or capricious, or may arise their work which making guilty unless in it he and other this under contractor fraud, misconduct, gross or such mistake for the owner work performing contractors imply faith or failure to as would bad by the adjusted and determined shall be judgment. Further- exercise an honest architect. more, cor- presumed is to be the decision rect, while he been made and to have good found that The trial court authority.” scope of acting within the faith, that it was job bid the and believed specifications complying with the correctly the Texas law. states This rule further, written, its bid Bros., 138 Tex. Martin See: State the written apparent compliance with City of San (1942); 160S.W.2d 58 found, however, specifications. The court Co., Tex. 136 Construction McKenzie rejected panels wood-end (1941). S.W.2d being fabricated as not project compliance with the contract the contract specifications Here the made of walnut were not tions to be wood species of specify did not Further, did rejection veneer. By failure their as the veneer. used original change in the represent a de- same, left such thus specify concluded The trial court specifications. under project cision contract, the that, the terms of under therefore, was, He contract. of the terms power to sole had the project architect authority rejecting his within acting intent of meaning decide Appellants’ birch veneer there was since specifications and that points through and, are without The judgment merit of the trial court does not therefore, overruled. make disposition of the birch veneer
panels which by Estey, were tendered Appellants’ have been point presents 11th stored since their difficulty rejection by more both appellants architect. appellee urge that trial judge, pronouncement in his oral the trial court was with judgment, out ordered that pleadings same be returned to to render Estey. judgment deleting However, disposition was not from the included judgment, contract and be- deducting apparently then price unit Estey’s cause of from lack of capacity the contract to seek price. It is seen specific that there was relief. We heretofore held that allegation of party asserting either was not requesting a barred this claim However, reformation of the the interstate transaction with cross-action, Mary’s prayed for can St. cellation and termination of said contract is re- judgment of trial court liability without further to it. all Since formed provide title and fully per contract had been possession accepted, formed and furnishing save for respects, is in In all other panels,
and installation of the wood-end we court is of the trial affirmed. general allegation sup conclude that this appeal costs of this taxed ports of the trial court. No appellants. complaint presented party here either proper court
that the trial did not delete the panels. Appel unit of the wood-end CADENA, J., participating. appellee’s first point lants’ final well as cross-point are overruled. Rehearing.
On Motion for *6 Mary’s by its complains second St. BARROW, Chief erred cross-point that the trial court Justice. for it had its claim waived holding 16, 1971, is re- Our damages the breach liquidated by reason of formed “The provide follows: found that the court trial court ment of the trial is reformed damages waived liquidated provide possession that title and by opting for fabrication local rejected panels is panels. This conclusion respects, In all other letter architect’s Estey is entitled affirmed. trial court is 16, 1967, wherein Estey of November Five Four Thousand sum of recover the proceed Mary’s would was advised Ninety-Eight Hundred 94/100 was re unless word fabrication with local on the unpaid remaining Dollars ($4,598.94) CST, November p. ceived 4:00 m. court. trial contract as modified procedure that as to appeal are taxed The costs of take to correct appellants.” be negotiations subsequent
panels. The controverted, although parties, tween re- respects motions In all other that St. trial court’s conclusion support by appellee appellants and hearing filed liquidated claim Mary’s waived are overruled. damages.