148 S.W. 336 | Tex. App. | 1912
This is an action by the Llano Granite Marble Company against Job Hollinger and the Lutcher Moore Lumber Company upon a builder's contract. The defendants interposed a general demurrer and several exceptions, some of which *337 are in legal effect general demurrers, the particular grounds of which are stated, pointing out the absence of allegations of facts necessary to a recovery. The general demurrer and all the several exceptions were sustained, and, the plaintiff declining to amend, judgment was rendered for defendants, from which plaintiff appeals.
As we have concluded that the judgment should be reversed and the cause remanded, we will merely in this opinion state the reasons for reversal. Article 1039, R.S.; Sturgis Nat. Bank v. Smyth,
The provisions of article XII of the contracts (being identical in each) with regard to submission to arbitration only apply to those matters set out in articles III and VII of the contracts. Article III refers to alterations made in the work on the order of the architect, which order, it is provided, shall state the amount to be paid or allowed for such alteration; and it is provided that if the contractor (that is, plaintiff) and the general contractor (that is, defendant Hollinger) cannot agree as to this amount, the same shall be submitted to arbitration. The only part of the work made the basis of appellant's suit, that comes under this clause of the contract or can be held to be so included, is stated in the petition to have been done under the express direction of the defendant Lutcher Moore Lumber Company, the owner, Job Hollinger, the general contractor, and the superintendent, who, it is alleged, had been chosen by them, and by the architect, without consulting appellant, the contractor to superintend the work; the architect being absent from the state. If these allegations be true, and if this superintendent had such broad powers as are stated in the petition, and appellant was required to do any extra work, or change the work in any way, by the express direction of the appellees and their superintendent, as it was impossible, so it was unnecessary, to get the order of the architect for changes ordered to be made by appellees. They would be estopped to set up that work expressly ordered by them to be done should have been done only by order of the architect, and, as it was not done by order of the architect, the failure to agree upon the amount to be paid or allowed therefor was not required to be submitted to arbitration under the facts alleged in the petition. And in addition, it does not appear from the allegations of the petition that there had been a failure to agree as to the amount to be paid. It only appears that appellees had refused to pay.
Appellant seeks to recover the balance alleged to be due on the contract price, and, in addition, pay for time, labor, and money expended and expenses incurred by it for tearing down and doing over certain work, and for work done not in accordance with the plans and specifications furnished him, and as to each of these items it is alleged that the work done and changes made were under the immediate direction and by the order of Lutcher Moore Lumber Company and Hollinger and their superintendent. If these facts be true, the petition, as to these matters, states a good cause of action, without regard to those provisions of the contract with regard to the architect's certificate and the submission to arbitration. The third special exception, styled first in appellant's second assignment of error, appears to us to be well taken, in so far as it applies to the claim for the balance due on the contract price for the work done under both contracts. Although the superintendent of the work and agent to represent the architect named in the contract was imposed upon appellant, according to the averments of the petition, without consulting him, it does appear that such person was recognized and accepted by appellant without objection as the representative of the architect, and as to the balance due for the work, provided for by the terms of the contracts, which required the architect's certificate as a prerequisite to the demand for payment, appellant should have either obtained such certificate or alleged some valid excuse for not having done so. The other special exceptions embraced in the assignments of error and the general demurrer were improperly overruled.
For the error indicated, the judgment is reversed, and the cause remanded.
A proper brief by appellees was absolutely necessary in this case to a clear understanding of the grounds of the general demurrer, and without it we have been unable to state more definitely and clearly the errors committed in sustaining the general and special demurrers. What we have said refers only to the general demurrer and those special demurrers embraced in the assignments of error.
If any of the special exceptions or demurrers were properly sustained, the error in sustaining the general demurrer would require a reversal of the judgment, unless in fact such special demurrers amounted in law to a general demurrer.
Reversed and remanded. *338
