*1 pleadings upon position affidavits she relies policy the renewal a continuation of the constituted original policy It is contract as evidenced of insurance. reflects, alleges petitioner’s true that her and she affidavit agеnt parties, knew divorce between agent being operated by res- knew that the automobile was allege pondent however, affidavits, after hr do not divorce. The agent her knew the was awarded to automobile decree, agеnt agreed May at divorce nor that any time, petitioner keep other automobile insured company. petitioner’s insurance affidavits show that The May 5, 20326, (the policy renewal dated numbered 70 same respondent petition) number in her was issued Rush, May Jr., period May William E. for a 5, 1954, covering suit, the 1950 involved this Chevrolet Rush, said said William E. was the sole owner of Jr. automobile, and that was the same as the one automobile original policy May 5, described in dated 1952. discharged petitioner fully
We hоld that its burden proving genuine there is no issue of material fact required 166-a, under Rule Texas of Civil Procedure. Rules See Gulbenkian v. Penn. 151 2d Texas 252 S.W. governing determining rules when and summary under what circumstances should be
granted or denied. Appeals of the Court of Civil reversed that of the trial court affirmed.
Opinion April 3, 1957.
Rehearing 1,May overruled 1957. M.
W. Skeet Chambless April 3,
No. A-6155. Decided Rehearing May 8, overruled 943) (300 S.W. 2d Series *2 Renfro, Dallas, petitioner. C. C. for McCracken, Dallas, respondent. Harold for Mr. opinion Justice Hickman Chief Court. study
Our in this involved record case convinced judg- us of the character of that one of law decisive here, ment should and our statement will which question. That be limited to the essential facts to that relevant measuring proper, decisive rule for for the of a to construct a housе. breach
Hutson, building contractor, into a contract entered certain the construction of a house Chambless plans specifications. price The contract par- Later, executed his to Hutson. which Chambless ties note agrеed the house and that Chambless $900.00 price that account. After was deducted from the contract on note, payments he had on made two sued alleging did not for breach that he specified requirements build house to FHA contract; a work- he failed construct house manner; spe- manlike and that he deviated from cifications. Hutson due on cross-action sued for balance *3 note, securing same, the and foreclosure of the lien the for judgment certain extras. In rendered the trial court was extras, judgment for Hutson on the note and for certain but damages was the rendered favor of for sum Chambless $6,000.00, against of covery. which re- amount was offset Hutson’s by
The trial court’s affirmed the Court Appeals. of Civil 2d 723. S.W. alleged twenty separate
Chambless particulars and distinct in which Hutson breached his of were in contract. Some these workmanship defective spe- and others the in deviations from cifications. The workmanship defects in and are deviations not such, comminglеd allegations classified as but are of the Adding petition. alleged required remedy the sums to the be to deviations, clearing various including defects and for $100.00 debris, the lot of $9,015.00, the result was which for Chambless damages alleged sued. As petition, we construе the for de- the workmanship fective to amount a few dollars. but hundred damages alleged Most of the claimed resulted deviations specifications furnishing from the or the of inferior material. special jury In answer to issues the the defects in found workmanship impairing could be remedied without the build- ing as a $6,000.00. at the cost whole reasonable of It next found the reasonable market value of the in its then $9,650.00, condition was and that its reasonable cash market value, contract, if constructеd to the would have been being the difference between the two values $7,100.00. jury then The found that Hutson deviated from the contract; deviations, terms specified, of the that some were others, specified, with the of consent also not Chambless consent; were not with his the cost reasonable remedying $6,000.00. the deviations not consented to would be above, As manship all defects in work- noted $9,015.00. The for deviations could be remedied remedy de- jury require $6,000.00 the found that to deviations, making $6,000.00 remedy а total fects and $12,000.00. $6,000.00 for The court rendered were sustained Chambless. Whether remedying remedying devia- workmanship defects in Judg- appear much is clear: tions does not in the record. This ment was not building for the difference in value between had it as сonstructed its been value $7,100.00. jury found which brought urged objections for Various and are below special re ward here to the manner issues of submission lating deviations, remedying but the cost of the defects and controlling presented under our view unnecessary record find it them. This for we consider reason at all. It should not have submitted been that, assuming as our view that Hutson breached alleged, ages jury, dam and as found correct measure of value,
suffered Chambless is difference as con house constructed and its above, sructed As found contract. noted workmanship answer to the defects issues impairing could be remedied without finding whole, as a to deviations. but like be remedied with whether the deviations could *4 building impairing not physical out the the was structure of jury. submitted to the objected Special the submission of Issues Nos. 2 arid in answer the found that the defects to which workmanship impairing
in the could remedied without be building $6,000.01). a whole a of ob- as at reasonable cost One jection an measure thereto was that submitted incorrect damages; of the that the measure of would be correct difference, any, building and if in of the as constructed does its value had it been constructed to contract. He bring form, first precise not point that here that but his on three theories.
is that it was error to submit the case argued charge point it is should have sub- Under the recovery, namely, special only theory of the mitted issues on one value, building the as difference in and contract. its vаlue it been constructed argument point the thereunder concluded that the and We have present the of court should have submitted whether the remedying or cost defects devia- issues on the of pleadings tions. It clear that under the of seems damages. one, only one, and correct measure of alleged remedy To the defects and deviations expendi- pleadings require only of Chambless would large rebuilding money, of a sum of the founda- ture tion, but the tearing rebuilding down and it of the brick veneer materials, rebuilding with better den of the at a cost of removing replacing more than tile bathroom, alleged requirements. some It mention intentionally is not claimed that Hutson deviated the con- through contrary, tract. On it was in- facts, measuring advertance. Under these the rule for the dam- ages well Supreme is settled. It is stated Court Wash- ington Mitchell, language: 213 P. this White necessary,
“Where is in order to make the com- ply structure, with the in whole or ma- part, changed, terial damage pаrts must be or there will be building, expense great, repair such will be then it cannot be a per- said there has been substantial formance Generally, of the contract. where there performance, such substantial of the owner’s measure dаm- age difference betwen the value of the as con- structd and its value had it been constructed in accordance with the recovery just contract. par- Such would be to both ties. It damage by manifest measure owner’s necessary cost to make the conform to the contract injustice, would often an many because in instances such cost would amount to almost much as price.” That rule Houghton, was followed in Totten v. 2d S.W. history, no writ and authorities therein cited. is an- It praсtically language nounced the same in 9 American Juris- prudence, Building Contracts, 43, p. and Construction Sec. Many supporting authorities the rule are annotated in 23 A.L.R. 1436, 38 A.L.R. A.L.R. 1298. *5 that, findings by
It jury is claimed since there were $7,100.00 the house was worth less than it have been acсording worth had judgment it been constructed to could have $7,100.00, been rendered favor of Chambless for complain judgment and that Hutson cannot was $6,000.00 conten- against $7,100.00. That him instead of submitting might if the issues tion be sustained brings us a consid- properly to had framed. This of value The issues and objections issues. to those eration of Hutson’s were: answers thereto
“Special a the evi- preponderance Issue No. From dence, market value find and state the reasonable cash building litigation in? Answer it is now cоndition $9,650.00.” dollars and cents. ANSWER “Special the evi- preponderance a Issue No. 5. From dence, value of said find and state the reasonable cash market building litigation if such have been value would as such ANSWER to contract? been constructed $16,750.00.” among ground, objected Special
Hutson Issue 4 on the No. others, injury the build that it did not take account the into ing caused doors failure contract. That woodwork inside the to his fact seri should been taken into A more have consideration. objection objec Special ous was leveled at Issue No. That fact, namely, disputed tion a was that it assumed issue of to contract. That Issues, objection Special should have been sustained. Law of 195; Jur., Speer, Cases, 41-B Sec. Texas Trial-Civil Sec. p. ren and cases there trial court did not cited. Since $7,100.00 der but we assume that objections At court that the were well taken. concluded rate, the court should have concluded. so building according to
Whether Hutson construсted the con sharply disputed tract awas issue. he admitted some While specifications, deviations from the he testi fact, fied that In were consented to Chambless. was sufficient on consent to cause the evidence the issue of deviations, specified, find certain consented deviations, which were Chambless. consented part him became of the contract itself. To assume that deviated from the terms of the to assume without the consent of the deviations were Chambless. submitting necessitates a The error issue reversal of the case. summarize, hold that the trial we court’s
To
199 upon damages; true based an incorrect measure damages measure of building is the in value difference trial, as it at the time allowanсe for stood with woodwork, failure, the doors and Chambless’ and its value had it con- tract; submitting measure of dam- issues ages framed; improperly error the manner submitting them necessitates reversal of the case. judgments reversed, and the both courts below are cause is remanded to the trial court.
Opinion 3, April delivered 1957. Norvell, joined concurring. Smith, Mr. Justice Justice I particular concur the decision reached in this case as assuming substantially seems that the contract has not been рerformed, recovery permitted pleaded under the facts Chambless would be measured difference between actually constructed and its value had plans specifi- been constructed in with accordance rule, cations оf however, properly the contract. This if it can be general rule, subject called a exceptions. is to numerous This difference in necessarily values is not the measure of when the default of the contractor is wilful or intentional. Co., v. Grоves John Wunder 205 Minn. 286 N.W.
A.L.R. 502. Nor should it be the exclusive measure
where it
shown that
property desiring
the owner of
construction thereon
dependent
upon
upon
a loan commitment which is based
com-
pletion of the
specifications,
work
accordance
nor where an essential element of the contract from the owner’s
standpoint
“gratification
is the
of his taste”
which he has
agreed
money.
pay
Richards,
contracted and
Marsh v.
Parker,
Mo.
Ann.
Opinion April
Rehearing May 8, overruled