36 Tex. 1 | Tex. | 1872
Under our blended system of legal jurisprudence, and especially under our peculiar system of pleading, common counts in declarations, as technically known at common law, have never been considered as necessary or essential. But, while most of the fictions, and many of the -forms, recognized and prescribed in the books, have in this State been abolished, yet the substance of every count and form is as requisite under our practice as under any other system; every action being a special action on the particular case, the petition should set forth “ a “ full and clear statement of the cause of action,” without ambiguity or contradiction, and also a clear statement of the relief sought. A petition may, therefore, be so framed as to declare on a special contract, and in any other form, so that the same is clearly intelligible, and not contradictory.
"We do not consider it important in this case whether the plaintiff below brought his suit on a special contract, or on an open account for work and labor done, and materials furnished, since the cause of action was the same (Keys v. Stone, 5 Mass. 391; Linningdale v. Livingstone, 10 Johnson, 35); and though the pleadings of the defendants, and the rulings of the court, have forced the plaintiff below to change the technical form of action, yet neither the suit nor cause of action was changed, and the statute of limitations would not bar the suit, unless the cause of action, as set up in the original petition, was barred.
There seems to be a peculiar equity in this cause, since the plaintiff, who had brought suit for work and materials put upon a certain house, was finally compelled by the rulings of the court to adopt a specific written contract set up by the defendants, for the same work and materials, which the plaintiff had never signed, and, so far as the proof shows, never had in his possession, and could hardly be presumed, after the lapse of two years, to know its contents. The rulings of the court, therefore,
‘ The only question, therefore, important to decide in this case, is presented in the sixth assignment. That the verdict of the jury was contrary to the law, as presented in the charge of the court, cannot be controverted, as the charge instructed the jury substantially that, as the contract was an entirety, and was not completed, the plaintiff was entitled to recover only for the value of the work and materials saved from the fire; and that he was liable to defendants for all advances made to him, and for the materials sold to plaintiff. And the facts show, that under that charge the verdict should have been much larger for defendants than it was. But we are of the opinion that “ the “ verdict of the jury was contrary to the law and the evidence; ” and, also, that the charge of the court, which should have governed the jury in their findings as to the law, was contrary to the law of the case, and not in harmony with the uniform decisions of this court.
It may be admitted, that by the civil and common law, where there is a specific and positive contract, absolutely to do an entire piece of work, or job, subject to no conditions either expressed or implied, and to be paid for only when the work is completed according to the contract, such a contract is not apportionable, and the contractor is not entitled to any pay until the work is completed. But when there is a condition, or when the contract is dependent upon the execution of another contract, or where the payment is not specifically deferred to the completion of the undertaking, in such a case the contract is apportionable, and in case of an accident rendering the completion of the contract impossible, the contractor is entitled to a pro rata, pay for his work ; and this appears to have been the
But it is claimed that appellant agreed to finish the building, and that in consequence he is not entitled to pay until he has complied with the terms of his contract. But we think it will not be contended that appellant agreed to build the walls, nor to ensure their standing until the wood-work was completed; and that in case of some internal defect in the walls, or the ground on which they stood, the whole building had fallen before the work was completed, it is believed the carpenters could not be held responsible. It must be remembered that the appellant, as carpenter, had no control or authority over thé masons, plasterers, or painters, and if they by accident or design had destroyed the building, certainly the carpenters should not be made to answer for their fault.
The contract was to furnish the material and do the woodwork of the houses being built on appellees’ premises, and therefore, every joist or sill that was placed in the wall, or piece of lumber nailed to the same, became inseparably connected- with the building, and a part of the realty, and therefore the property of appellees; and in case of the destruction by accident, or the act of God, the rule res perit diomino will
But this court, by a succession of decisions, has settled the question of the apportionability of contracts, and we are inclined to follow those decisions in this case. (See Baird v. Radcliff, 10 Texas, 82; Hilliard v. Crabtree, 11 Texas, 264: Gonzales College v. McHugh, 21 Texas, 256, and Carrol v. Welch, 26 Texas, 147.) In the last case the court says: “ The “ doctrine of the earlier decisions, to the effect that where the “ contract in cases like the present is entire, the performance by “ the employee is a condition precedent, and he has no remedy “ until he has fully performed his part, is not now the recog- “ nized doctrine of the courts.”
For the reasons herein stated the judgment is reversed, and the cause remanded, to be proceeded with in accordance with this opinion.
¡Reversed and remanded.