160 S.W. 311 | Tex. App. | 1913
We adopt the statement of the case found in appellant's brief, as follows:
"This suit was brought by Sidney Smith, Jr., as plaintiff, against the following defendants, viz.: Birkner Beasley, a firm composed of Otto Birkner and D. K. Beasley; C. F. Gary, alleged to be a member of the partnership of Birkner Beasley, who denied under oath that he was a member of such partnership; P. G. Silber, alleged to have been a member of Dallas Cement Stone Works, a partnership composed of plaintiff and said Silber, which partnership, it was alleged, had dissolved, said Silber transferring to and guaranteeing the payment of the claim in question to plaintiff; the First National Bank of San Marcos, a banking corporation, which had contracted with Birkner Beasley for the erection and construction of the building in question; C. F. Gary, W. E. Gary, J. E. Mauldin, and John A. Mott, sureties on the bond executed by the contractors, Birkner Beasley, to the said bank to insure the faithful performance of said building contract. Plaintiff also alleged that since the filing of this suit he had transferred and assigned the claim in question to J. B. Adoue, for whose benefit this suit is prosecuted, and defendants Goslin Wright, a firm composed of J. W. T. Goslin and R. M. Wright, were made defendants in this cause for the purpose of having their alleged lien adjudicated. Plaintiff claimed a balance of $1,410, and Goslin Wright a balance of $643.50, alleged to be due for labor performed and material furnished on said bank building under contracts with said Birkner Beasley, and sought to establish liens on such building, and the ground on which it is located, to secure the payment of their claims. In addition to the lien, plaintiff claimed to have an assignment executed by the contractors, directed to said bank, for the payment of said $1,410. Defendant bank pleaded a general denial, assignment of the fund claimed by plaintiff, and that it had a contract with Birkner Beasley requiring them to construct and complete the building in question on or before November 15, 1909, and that in the event of their failure to do so, defendant bank was entitled to the sum of $20 per day, as accrued and liquidated damages, for each day thereafter that such building was not completed, and that same was not completed until August 27, 1910; that it had paid said contractors various sums of money, both on the estimates of the architect and in addition thereto, all of which were made as payments on the contract price of the building, and that it was not indebted to said contractors in any sum. Said cause was tried before a jury on November 14, 1912, and the court, after submitting to the jury one special issue, as to the rental value of the building in question, on motion rendered judgment as follows: For plaintiff, against defendant bank, for the sum of $583.50; for plaintiff, against defendants Birkner Beasley and D. K. Beasley and P. G. Silber, for $1,410; for defendants Goslin Wright, against defendants Birkner Beasley and D. K. Beasley, for $643.50; for plaintiff and defendants Goslin Wright, establishing and foreclosing mechanics' and materialmen's liens upon and against defendant bank's property, in the sum of $1,977.06. The court also rendered judgment for defendants C. F. Gary, W. E. Gary, J. E. Mauldin, and John A. Mott, and against defendant Silber on his cross-action."
Mr. Chief Justice Gaines, in Collier v. Betterton,
The evidence shows that the loss sustained by appellant in being deprived of the use of the building was easy of ascertainment, and that the rate of $20 per day fixed by the court was absolutely disproportionate to the loss sustained.
2. Where the owner of a building in course of construction has legal offsets against the claim of the contractor for work and material, such offset is superior to the claim of the contractor's assignee; still the owner has no superior claim to money held by it out of money due to the contractor and to which it is not entitled. The court submitted to the jury the proper measure of damages sustained by appellant, which was found by the jury, and which finding fixes the amount which appellant had the right to hold; therefore the balance of said sum was subject to plaintiff's demand.
3. The ninth assignment, wherein appellant complains of the judgment in favor of plaintiff for $593.50 as a double recovery to that extent, we do not think is well taken. We think the judgment clearly shows that the $593.50 is a part of the $1,410, and the payment of the latter sum extinguishes the former sum, and likewise the payment of the $593.50 cancels a like amount of the $1,410.
4. The rejection of evidence will not be considered when the bill of exceptions fails to show what objections were made to the testimony and sustained by the court. Appellant's exceptions 2 and 3 are defective in the particular named; therefore the assignments based thereon will not be considered. Railway Co. v. Jarrell,
The foregoing seems to be the rule followed by the courts of this state.
The case of Waller v. Leonard,
5. We conclude that the evidence supports the judgment; that the record shows no reversible error, and the judgment is therefore affirmed. *314