Gillespie v. Williams , 1918 Tex. App. LEXIS 1284 ( 1918 )

^* Writ of error dismissed for want of jurisdiction Mar. 12. 1919. Appellant insists that the finding that he had waived a right he otherwise would have had (179 S.W. 1101) to recover of appellee as liquidated damages $5 a day for each day the building remained incomplete after May 1, 1913, was not supported by testimony. As appellant did not object to the submission of the issue on the ground specified, he is not, under the authorities now to be cited, entitled to urge the contention he makes in this court. Riedel v. Wenzel, 186 S.W. 386; Traction Co. v. Rogan, 199 S.W. 1135; Milling Co. v. Glasgow, 194 S.W. 686; Ross v. Moore, 191 S.W. 853; Bank v. Smith, 183 S.W. 862; Insurance Co. v. Burwick, 193 S.W. 167; Railway Co. v. Weems, 184 S.W. 1103. In the Wenzel Case the court said:

"By failing to object to the submission of the issue as to waiver, appellant agreed that the facts raised the issue. He cannot be heard now to say that there was no evidence of waiver."

The contention made, that the finding that the additional cost to appellee of placing in the building other mantels than those first agreed upon was $74.90 was unsupported by testimony, must be overruled. The contention, it seems, is on the theory that the testimony of appellee, on page 5 of the statement of facts, that changes in mantels agreed upon made it necessary to make changes in chimneys, was excluded by the court; and it appears from the note on that page of the statement that that testimony was excluded, but we think it must be said to further appear that, after being excluded, it was again offered and admitted, for it appears on page 15 of the statement of facts that appellee testified without objection that it was "necessary to make some changes in the chimneys in order to accommodate the new mantels," and that the change was made at appellant's request.

The complaint in appellant's brief remaining undisposed of is that the judgment is excessive in the sum of about $146. The contention is based on the fact that the court, in rendering the judgment, failed to allow appellant credit for the $25 a month the jury found to be the rental value of the building from May 1, when it should have been completed, appellant says, and September 5, 1913, when it was completed. The contention ignores the fact that there was no finding by the jury that appellant was entitled to recover the rental value of the building during that time, and the fact that the court in effect found, when he refused to allow appellant anything on account of the delay in the completion of the building, that he was not entitled to recover such rental value.

The Judgment is affirmed.