Lyon-Gray Lumber Co. v. Wichita Falls Brick & Tile Co. , 1917 Tex. App. LEXIS 483 ( 1917 )

The contention appellant makes is that it appeared as a matter of law that it was entitled to judgment against appellee for the $1,369.36 in its hands which Fields, had he complied with the terms of his contract with appellee, would have had a right to demand and receive of it. We do not think it so appeared from the testimony. Appellee's liability to appellant was predicable on nothing else than its acceptance of the order drawn by Fields on it. In the instrument evidencing the acceptance it was expressly stipulated that it was "not to be considered as final or binding until Fields has completed and satisfied his contract to the satisfaction" of appellee's building committee. It not only did not appear as a matter of law from the testimony that Fields had performed his undertaking under the contract to the satisfaction of the building committee, but, on the contrary, it appeared that he had not done so. The action of the building committee, shown by the excerpt from the minutes of its proceedings set out in the statement above, could not be construed as an unqualified acceptance by it of the building. If its action should be construed as an acceptance of the building at all, instead of a mere indication that the committee would accept it when completed in the particulars specified in the architect's report, certainly the acceptance was a restricted one. It showed that the building was incomplete, and that the committee was not then satisfied that Fields had complied with his contract covering its construction. As it appeared from other testimony that Fields never afterwards completed the building in the particulars specified by the architect and referred to in the entry on the minutes of the proceedings of the building committee, we think the trial court did not err in refusing to render judgment for appellee against appellant. The condition upon which appellee accepted Field's order on it and agreed to pay $3,295 of the sum it was drawn for never arose, and therefore it did not appear that appellee ever became bound to pay appellant anything on account of its acceptance of the order. The contention made by appellant that the committee's acceptance of the building as shown by the excerpt from the minutes of its proceedings had the legal effect to make appellee liable to it for the part appellee had not before that time paid to Fields of the sum it agreed to pay him for constructing the building, less the sum necessary to be expended to complete it in the particulars specified in the architect's report, is not, we think, tenable. By the terms of appellee's contract with Fields 20 per cent. of the sum it agreed to pay Fields was payable only "when the building was completed and accepted." The part of the contract price which had not been paid to Fields at the time of the committee's alleged acceptance of the building amounted to less than 20 per cent. of the whole, and appellee never became bound to pay same or any part of it to Fields; for the building was never completed according to the plans and specifications forming a part of the contract. The part of the contract price which had not been paid to Fields' order in appellant's favor only undertook to pay to the latter "any sums due to Mr. John T. Fields, contractor, as a balance on his account, * * * not to exceed the sum of $3,295." Nor do we think that the contention made by appellant that appellee became bound to pay it said part of the contract price of the building because appellee took possession of and used the building in its unfinished condition is sound. There was testimony which would have authorized a finding that appellee took possession of and used the building with Fields' consent and on the faith of an understanding between them that it should not operate as a waiver of any right it had to insist on his completion of the building in accordance with the contract. 4 Elliott on Contracts, § 3706 et seq.

There is no error in the Judgment, and it is affirmed.