*1 Tеs.) MOOD v. CHURCH SOUTH i.W.) (2S9 ¡ road, public proposed be the <@=>232(7) 4. Contracts held enti- —Contractor tled changes to reasonable value of services the defendants their line call by necessitated substantial plaintiff’s es- road call was line by court. commissioners’ tablished Building held entitled to recover contractor court, judg- and a case was tried before ment wаs rendered for making changes reasonable value and alterations the defendants. by building committee findings of fact and con- filed court clusions by and plans not necessitated defects in appear fully law, set out affecting of struc- in the record. ture. the trial We conclude that <@=>3(l) 5. Election of build- remedies —Church facts, and that the case on thе decided the value contractor’s suit reasonable assignments pellant’s should of error several changing position services in held to plain- of both the The deeds- be overruled. express bar contract. Alto and tiff and the call “the defendants Church suit for contractor’s rea- go road,” Perry the lines should Bates changing posi- sonable valuе of services ground. is located on the that road as it tion of bar amount held clearly to and intends call refers Such claimed on contract. by public the commissioners’ road established <@=>38 6. Mechanics’ liens by —Contractor generally name. known court and selecting allowance for services of the deeds is not evi- in the call mistake supervising work, paid by owner, can- or is no other road there dent. And there not claim mechanic’s lien.'- contemplated by name. near there Where all material and owner and direction width bills, and contractor claims allowance serv- Company in went no Morrill Orchard supervising work, ices material and survey proposed a mere further line. than his сlaim for mechanic’s lien is not allowable change was never under Constitution. deeds suit <@=>7 Religious 7. societies unin- —Members proposed change. corporated church associations who incur or findings, warrants the court’s personally liable, assent though debt creation of is affirmed. (Rev. 1925, is suable association St. 1911, 6149-6154). art. Rev. St. arts. 1925, 6137, Rev. Under art. members of uninсorporated church associations who in- MOOD v. METHODIST EPISCOPAL * per- curred debt sonally assented to its creation are though therefor, 225.) (No. association sued under Rev. St. arts. 6149-6154. (Court Appeals Texas. Eastland. Civil Rehearing Religious <@=>29 signing Denied Oct. 1926. 8. societies —Pastor 23, 1926.) Dec. held not liable there- on, showing in absence of that he assumed its (@=3 of ac- Limitation of actiоns 124—Cause burdens valuable consideration. tion contractor’s services held assigned during Pastor who was to church brought barred as to defendants ed amend- sign- construction of ed under contract not years after accrual. over four congregation him and was not a member of for services Cause of action held not liable on in absencе of show- building held construction of church barred as ing that he burdens for valuable into to defendants first ed amend- consideration. cause of action accrued. On Motion for <@=>21 alleging Pleading re- mutual reasonable —Petition <@=>232(2)— Building 9. Contracts contractor praying recovery of scission and held entitled to recover for extra work in value contract. barred action on conforming remedy dеfects in alleging Amended mutual rescis- building contractor held Church * build a church sion contract to recover committee directed praying tor’s uit value reasonable of contrac- to conform to services, presented claim for mer- remedy by architect construction to of action on and cause contract in- subsequent petitions was barred. serted <@=>256 positive, must be 10. Contracts <@=>272Changes by —Acts 3. Contracts mutual con- — ' and inconsistent with existence arrangement, position sent in interior of win- to constitute “abandonment.” dows, etc., held not to rescind con- To constitute “abandonment” tract. conduct, action relied on must be un- Changes by mutual consent equivocal, and inconsistent with existence of general аffecting design, church but position bases rescission of contract. contract. relating principally arrangement, to interior definitions, windows, cornices, see Note.—Eor other Words [Ed. Phrases, Series, columns, etc., and Second Aban- First held amount Abandonment.] don— Digests Key-Numbered in all' and Indexes topic other cases see same and KEY-NUMBER
®=>For granted March of error *Writ *2 289 SOUTH WESTERN REPORTER vide contractors were to receive the amounts ex pended by church 100. mitted rulings ing appellees committee of the B!. E. co, whereby reached thereon: that the cause of action was barred as to the fourth amended Biarch appellant’s court Page, sequent amendments. Bailey, Witten, undoubtedly correct. fendant performance оf the service sued for. A kins, Southern, questions perhaps, dict lant. trial quantum meruit, amended cause of action and were ing a amended was der the contract. sustained to that abandonment ties and, ridge, below, sought to recover for dered Hayden, Jr., peals. Reversed and remanded. dist Judgment for ty [2] As between H. C. Before PANNILD, The trial was had Hawkins, Appeal Aсtion Butts ; whose favor the trial Geo. all material judgment before stipulating prayed Appellees Webb, Bowman, Godbey, Episcopal Upon completion rightfully contractors, 20, 1925, fifth that such ; Rominger in order to petition last above named. proceeding by Elmer original petition L. from District determinative of them appellant. being cause of аction alternative, Wright, a Davenport, Hawkins & for on a jury into the C. J. The complaint name defendants, was rendered plus Abilene, at a Garner and original petition Church South and under the contract on the a contract between the following sustained their sufficient to more than four and labor and to build a tained under the Appellant, part allegations was had entered into a Blood appellees. Special exceptions awith dispose cost not to exceed after upon appellant’s specific compensation,. the construction of Court, Church South of quantum per cent.; Cisco, Judge. and the conclusions mutual rescission of the David, appellant, plaintiff аgainst omitted from the an instructed ver- statement is sub the causes of action were compensation accrued, upon and"the discussion of the appellees. inserted Blood, Eisk, building Eastland against appel- set illustrate the first time become liable to the petition and Bedford appeal plaintiff and all sub- contract of Brecken- years meruit for ruling the Bletho- exceptions .the Tip Thos. and one and the sonable value of the services of the contrac remain issue a new others. build in an Coun- it after sixth seek- tion, $47,- filed amount of 10 pro Cis par- ren- the lief un- appellant pleaded the contract and attached El is, es were made E. a alternative, recovery sought that on the tors. These ages native, which the trial was had. C. & S. F. price; and their hanced and therefore exceeded the contract and carried out all the orders of quence the latter subsequent architect; the 15th was ferent in all and1ratified ceeded with building a rescission and abandonment of the contract. In his third amended within the bar of the icаted his terest approval of 64. lees tracts were and the second agreement. architect. This contract was made with the owners bills as the work tum the cost sum As. copy great where asked, part specifications During meruit, paid named; averred- that stated, exceptions things for breach of be erected of the same as an the cost of the structure was en agreed personal injuries, and, price; and in the alternative for the rea detail in Page) day specifications; except upon architect; (claiming all bills for labor and material. that said amendments and were elaborated Ry. Co., thereafter first, direction the contract was allegations signed, in accordance with the the church trustees. Two accrued, completed the facts would not have exceeded the by appellees that no alterations rescinded and building that the contractors fulfilled abput thereon. and this work to recover contractors August pay which were attached his the amended the contractors had said contractors thereunder until about two weeks later. The all labor original petition pred statute completed allegations alleged appellees original petition assignment should not exceed the written order contract, at appellees ruling first June were sustained seeking that certain when the contract exhibit and werе separated of Reasoner v. G. a solely In that sought approved by to, substituted, cost of guaranteed was not erected abandoned, repeated meruit after owners. The pleaded certain must be sus and material in the alter work, appel- furnish em- cost of limitations, be made in the cost of on a for dam appellees accepted his $67,093.- the full and re mutual chang conse in all quan peti said pro one, capable Tex.) (cid:127)defects cause of action inserted ployment, cause petition the contract os onis as follows: n and relief for sition were carried third ception formance of the ent had the had been the the barred. required contractors. 'the there tions basement (cid:127)or and nowhere was tracted statement dence dence dered. (cid:127)deviations tions may proved, interior—the tors a claim change ais substituted specifications. defects related cornices; height ferent changes appear writing [3] the in the entrance afterwards, third amended been annulled sеcond contract these whole auditorium. dispute signed and a different kind of brick not detail were made with the of abandonment of were delivered to whether in the The substance of to that but for. appeared that between for did not any agreement walls and failure the windows. wholly claim, and and the not conclusion performing approaches as to the time the and choir preparation position throughout the ever auditorium had plans arrangement principally recovery There the that called That before this is to substitute sustained auditorium, from the illustrative. The agreement, part to mere deviations in the W. all the before execution MOOD v. relied other affect That after payment disabled amount due performance bases changes original petition presented and not denied since been there were in the consent will furnish both believed plans than that change stand here the on the trial by conduct; on the any *3 the the also to rescind was That a number of new blue any the the windows. signed. roof general design, physically parties; the basement. These rearrangement and contractors. windows; the employment, be- S. reached an entire injury consent defendants’ labor. required the auditorium in the in the agreement that appellant claim of $800 to be immate agreement columns; of a roof; height first contract not entirely the contrac foreclosure of the new made after discovered, That rescinded held used was therefore all pleading, finding until plaintiff directly and' the position for the and on evi no In the prints, chang- differ of the relied devia noted there alone peti- that was was the per-' (289 ten !.W.) con evi the ex- po for Houston of titled to recover £ point. amount Ry. of mutual writ of Loan & wholе services either under the contract or ingly Strawn ed der Appellant by Da Moth plans plans the and alterations ed to the not School defects effect item of and beauty, the its whatever v. Shaw Clesi paired nished, pellant is involved (Tex. Our Constitution terialmen he tract The last-cited [4] While [5] [6] for the Ry. that obligations would the basis warrant not those that similar tо changes were Railway 106 W. The learned Appellant’s (Tex. But price. that here considered plans. Lonergan Civ. Is believed to Co. 858; Scott, Nor District he had furnished Merchandise Co. in favor or attractive rule and it $800 to rescission. in the Trust error Water sum due them for all S. changes reasons a lien on all & be entitled could erect the App.) no defeсtive, and of a in no performed Civ. as appellant can announced in Rose its reasonable barred. of a this item had the that the contract was rescind the involving recovery was a matter and made cannot be doubted Civ. changes of his Co., the case at mechanic’s case is the App.) (Tex. appellant changing required cоntract for the further Ryan small grants where, stated, correctness of in the and v. Hillsboro not granted, App.) 223 S. Boone required. be correct. Prior to and because of such such abandonment. appearance. 130 Am. St. agreement Phœnix him he is cannot the material 208 S. to a lien materials or Civ. are those buildings could be would not resting degree (Tex. Tex. Houstоn reasonable value making proposition mechanics and as contract bar. Houston E. W. lien on the church App.) been value; appears 0f necessary by here, but recover W. Pope position Lumber Civ. Appellees rescission 116, was, and San Antonio Independent convenience, It because sued relief the on offered, relating E. Housley 104 S. the perplexity. Thames v. an Rep. 803; support a was there App.) 61 S. W. labor structure therefore warrant- v. Willis that is changes dealing for to the for the Co., of the strik- if or re Kuhn from and fur ma- the the un the the en- W. ap on WESTERN REPORTER 289 SOUTH
(cid:127)bevs of bership in gested lant’s not'shown. tract and could not be tion he his execution Under consideration to' merhill it'. construction. his stаtement that he was ex officioa member thereon, sociations of the character as the one at bar. o'f the tion lees’ Rapids 34 Tex. Civ. are 6154, individually the. of all signments ey) cur the debt must ciations as building committee are liable church in that an then be associations failed. whether our sonally signed way ic’s lien (Tex. Trading above vised Statutes F traсtor for In What By [8] The [7] instructing was not liability bis case Appellee Stuckey suable under Rev. last neither all suggestion view of Appellees’ statute it is now named. . W. liability Snelling, supra, served. He did not Furniture unincorporated sued, material liable has been unless it was noted made in last cited 91; overruled. points presented also liable to having ; the record. remaining Wilkеs, he, question App.) 20 C. L. the one here considered could not a member of burdens. No such He was not a or assent statutes App. 248, while the unincorporated & D. C. M. E. Church South and that since Under the local Day (Tex. R. 1925, art. 6137. The observa- allowable therefor. committee and advised with verdict for the trustees 140 S. cross-assignment and labor bills and architect becomes immate now appellee Stuckey said, above at the time the contract a 10 personally congregation, determined that question Members referred valuable his claim the rule announced in Ry. to its creation The court did not err p. shown that after be association could we provided predicated nor members the loсal sued, re.sted Burton v. Co. v. response governed by proceeded against sign tbe believe, disposes it is presented associations consideration, compensation as an pastor of such asso to determine not raise the issue of mutual abandonment App. 456, for a mechan made thing the rule appellee served. but' statute such 181, p. 841. apply individually Read various as was under arts. 6149- which was Van v. congrega suggested change allowance reasonable value contract; App. 148 S. W. reason of asserting as to the Constitution. on mem statement was are tlie con who Clifton, (Stuck by obligor by Grand appel- appel rehearing mem- Rail Horn Bros. Sum is as sug fact *4 per Re- 133 as as- by its pаtent issue of his alterations have then ities conduct, was abandoned ence gation relied on conform to the liable for the extra work thus occasioned. benspeck, their services. Ill. P. 971. that the dicating E. E. This on the plans and the owner directs the builder to rected increased cost. 9 previously stated, except appellees’ сonclusion that supervising rearrangement If To constitute Where, during [10] The decision that Reversed 963; 413; conduct reason contention under appellant they there was the contractors Further consideration necessary by violation of the rule. The motions for provided knew when it original contract, the contract. The one under investi- apрellant’s Hills Ross v. Boyden Hill, the acts relied on must be On Motion does not 22 Ind. are overruled. could build the house raised pleaded, except intention the extra work and inconsistent is remanded it, theory that, adhered the altered change. position are defective and be awarded abandonment as changed plans, remanded. Tabor, McMunn, on his сlaim for J. §C. claim for govern the reasonable value the interior he is' to changes; view defects in the discussion would be a to. question. conform Cooke v. remedy supposed 53 Cal. to. At 198 Mass. occurred, responsible are Garver v. Dau 180, p. 840, or, Additional author this situation. the owner decides that due has construction the deviations trial Ill. further bound App. 605, to involving the owner would claim' produced required by Murphy, To claim that and would warranted extras, the exist- precluded The rule time sustain having section 85 N. de di no' N. of, in of