Security Banking & Investment Co. v. Flanagan , 1922 Tex. App. LEXIS 909 ( 1922 )

On Motion for a Rehearing.

Among the items listed by the appellee as the basis of his claim for delay was one for 42 days, from September 28, 1919, “fighting a wet hole caused by defendants furnishing plaintiff casing of inferior grade and not heavy enough to withstand the water pressure and which became broken and permitted water to seep into the hole.” In the trial, appellants presented a special charge directing the jury not to allow the appellee any damages for delay during the period covered by that item. That charge was refused, and the ruling was assigned as error. In the motion for a rehearing, it is urgently insisted that there was neither pleading nor evidence to sustain a finding in favor of the appellee upon that item. It is true the ap-pellee testified that' a part of the time included in that 42 days was covered by other items included in his list. He frankly admitted that, about 12 days of that period, was covered by other items and improperly included in that particular one. He did testify, however, that a portion of that time was not covered by other items of his claim, and contended that the delay was occasioned by the failure of the appellants to furnish proper material for use in his operations. In view of the fact that some portion of that time might properly form the basis of a recovery for delay, the court correctly refused to give the charge requesting the jury to disregard the entire period.

We have carefully examined the remaining grounds set out in the motion for a rehearing, and conclude that they are not sufficient to justify a reversal of the judgment.

The motion is overruled.