254 S.W. 323 | Tex. App. | 1923
Lead Opinion
(after stating the facts as above). We doubt if appellee in its petition stated a .cause of action, arising on the contract set out above, against the construction company. Of course, if it did not, the judgment should be reversed so far as it was against appellants, even if they were liable as sureties for a failure of the construction company to perform its obligation under said contract. Article 1827, Vernon’s Ann. Civ. Statutes 1918 Supp.; American Bonding & Trust Co. v. Garrett, 61 Tex. Civ. App. 454,-129 S. W. 298; Texas Auto & Supply Co. v. Magnolia Petroleum Co. (Tex. Civ. App.) 191 S. W. 573; Ricks v. Pinson, 21 Tex. 507. The undertaking of the construction company was “to commence and complete (quoting) the construction of certain street improvements and all extra work in connection therewith as stated in general specifications,” furnishing the material, tools, etc., necessary therefor, “in accordance with plank and specifications” agreed upon, “in the manner and under the
But if it should be conceded that a cause of action was stated' against the construction company, we think the judgment so far as it was against appellants was nevertheless unauthorized, because it did not appear from the allegations in the petition that they were liable for the consequences to appellee of a breach by the construction company of its contract, nor did it appear from said allegations that they, or either of them, had defaulted in the performance of any obligatiSn or duty they owed to appellee. What Head agreed to do and what the surety company by its bonds bound itself he would do was “to protect and indemnify” appellee against loss “in the event of any dispute, discrepancy or other contingency arising which might in any way affect the amount of work done or materials furnished” by the construction company, “so as to in any way affect” the warrants issued by appellee to the construction company and by it (the construction company) indorsed and delivered to him. That Head was a mere trustee of the parties for the purpose of holding possession of the warrants until he was directed by appellee’s mayor to deliver them to the construction company is plain, we think. It "was not alleged that he did not have the warrants in his possession, or was not holding them as agreed upon, or that he had in any way violated the trust. If he was holding them as agreed upon, certainly appellee had no right to maintain this suit against him. And, of course, if it could not maintain it against him, it could not maintain it against the surety company as his surety.
The judgment is reversed, and the cause is remanded to the court below for such proceedings as may be proper there.
Lead Opinion
But if it should be conceded that a cause of action was stated against the construction company, we think the judgment so far as it was against appellants was nevertheless unauthorized, because it did not appear from the allegations in the petition that they were liable for the consequences to appellee of a breach by the construction company of its contract, nor did it appear from said allegations that they, or either of them, had defaulted in the performance of any obligation or duty they owed to appellee. What Head agreed to do and what the surety company by its bonds bound itself he would do was "to protect and indemnify" appellee against loss "in the event of any dispute, discrepancy or other contingency arising which might in any way affect the amount of work done or materials furnished" by the construction company, "so as to in any way affect" the warrants issued by appellee to the construction company and by it (the construction company) indorsed and delivered to him. That Head was a mere trustee of the parties for the purpose of holding possession of the warrants until he was directed by appellee's mayor to deliver them to the construction company is plain, we think. It was not alleged that he did not have the warrants in his possession, or was not holding them as agreed upon, or that he had in any way violated the trust. If he was holding them as agreed upon, certainly appellee had no right to maintain this suit against him. And, of course, if it could not maintain it against him, it could not maintain it against the surety company as his surety.
The judgment is reversed, and the cause is remanded to the court below for such proceedings as may be proper there.
If this court erred, as appellee insists it did, in holding that it appeared that Head was a mere trustee for the purpose of holding possession of the warrants, the conclusion reached that a cause of action was not stated against him nor against the surety company was nevertheless correct, we think because it did not appear from the allegations in the petition that a "dispute, discrepancy or other contingency" arose which in any way affected the warrants turned over to Head. If Head held the warrants, and it was not alleged he did not hold them, and if he had not "paid to or credited" any of same to the construction company "except in such amounts" as were shown "by estimates duly allowed and signed by the mayor," and it was not alleged that he had, he had not breached his undertaking, and a cause of action against either him or the surety company did not exist.
*353The motion is overruled.
Rehearing
On Motion of Appellee for a Rehearing.
The construction company did not appeal from the recovery appellee obtained against it, and it was not the intention of this court to disturb the judgment of the court below in that respect. That it was not so stated, directly, in the opinion disposing of the appeal, was due to an oversight of the writer.
If this court erred, as appellee insists it did, in holding that it appeared that Head was a mere trustee for the purpose of holding possession of the warrants, the conclusion reached that a cause of action was not stated against him nor against the surety company was nevertheless correct, we think because it did not appear from the allegations in the petition that a “dispute, discrepancy or other contingency” arose which in any way affected the warrants turned over to Head. If Head held the warrants, and it was not alleged he did not hold them, and if he had not “paid to or credited” any of same to the construction company “except in such amounts” as were shown “by estimates duly allowed and signed by the mayor,” and it was not alleged that he had, he had not breached his undertaking, and a cause of action against either him or the surety company did not exist.
The motion is overruled.
