Cleaver v. Drake-Brannum Const. Co. , 1917 Tex. App. LEXIS 494 ( 1917 )

LANE, J.

This suit was instituted by C. A„ Cleaver against Drake-Brannum Construction Company to recover $1,000 alleged to be the value of a certain concrete mixer, steam engine, and boiler, hereinafter referred to as-“machinery,” the property of plaintiff.

The case went to trial before the court without a jury, upon an agreed statement of facts, the material parts of which are as-follows:

The defendant, Drake-Brannum Construction Company, leased from the plaintiff, C.. A. Cleaver, the machinery in question, to be-used by defendant at West Point, Tex., in the construction or repair of a bridge across the Colorado river, under a written contract containing, among other provisions, the following:

“The said mixer is to be delivered by party of' the first part [plaintiff] to the party of the second part [defendant], at Houston, Tex. * * *' Party of the second part agrees to return to' the party of the first part the mixer in as good condition as when received, fair wear and tear excepted, at the location at which the party of the second part received the mixer from the-party of the first part, or to deliver it to any other point at the option of the party of the first part.”

It is further agreed that the machinery was received by the defendant, shipped tO' West Point, and there used by defendant in. preparing material for use in repairing a. bridge spanning the Colorado river, that while being so used there was a great and unusual rainfall • which caused a great and unusual rise in said Colorado river at West Point, and that by reason thereof said machinery was carried away by the flood waters- and destroyed, and that it has never been recovered; that such destruction was without fault upon the part of defendant, and that the-market value of said machinery at the time it' was destroyed was $501.

Upon this agreement the court rendered, judgment for defendant.

'Appellant, Cleaver, insists that upon the-agreed facts the court should have rendered, judgment in his favor for the sum of $501, and that it erred in not so doing. This assignment presents the only question for our decision.

Appellant’s contention is that, as appellee contracted to return and deliver said machinery to appellant in as good condition as-when received, fair wear and tear excepted, without other reservations and exceptions, it is bound to make such delivery by the-terms of such contract, and that appellee is-not relieved from so doing because such machinery was destroyed by agencies over which, it had no control.

On the other hand, appellee contends that,, as the machinery was destroyed by an unusual flood over which it had no control, and without any fault on its part, it is not liable-to appellant for the loss of said machinery and consequent failure to deliver the same-to appellant, as it contracted to do.

We do not think the contention of appellee ¡ can be sustained, but, on the contrary, we ¡ think the contention of appellant is sustained by the great weight if not by all the decisions of the courts of this state and other states passing upon similar contentions to those here presented for our decision.

We find that by the contract of the parties to this suit, upon which appellant’s suit is based, appellee voluntarily obligated itself to ■deliver the machinery in question to appellant in as good condition as when received, fair wear and tear excepted, and that there were no other exceptions or reservations contained in said contract. Such being the ease, the sound maxim, that as a man binds himself so shall he be bound, is applicable, and this court is charged with the duty to so hold. The appellant may or may not have been willing to contract with appellee to hold him harmless in case said machinery was destroyed by an unusual flood or other agencies over which appellee had no control, but we find that in this case he did not do so, and we are not at liberty to make a contract for the parties which they did not make for themselves. It is conceded that, where the law creates a duty or imposes a charge, and the contracting party is disabled to perform his contract without his fault, and has no remedy, then the law will excuse him, and.in such case he will not be held liable in damages for nonperformance, and also that he cannot be held liable for a breach of his voluntary contract when the law intervenes to prevent its performance; but we have no •such case before us.

“If the parties to a voluntary contract make no provision for 'a dispensation, the law gives .none. It does not allow a contract fairly and voluntarily made to ho annulled, and it does not permit to be interpolated what the parties themselves have not stipulated. The promiser may not be compelled to perform tho undertaking, but he cannot, on account of hardship or the impossibility of performance of the undertaking, relieve himself from the liability incurred by -the contract. Accordingly one who voluntarily ■enters into an absolute contract, without qualification or exception,” to return and redeliver machinery delivered to him in as good condition as when received, fair wear and tear excepted, must abide by Ms contract and perform his undertaking, and cannot be heard to say that he was prevented from such performance by reason of an unprecedented flood. Volume 6, R. C. L. §§ 364, 365, 367, and 368, pp. 977-1006; Northern Irr. Co. v. Dodd, 162 S. W. 946; Northern Irr. Co. v. Watkins, 183 S. W. 431; Bartlett v. Bisbey, 27 Tex. Civ. App. 405, 66 S. W. 70; Gunter v. Robinson, 112 S. W. 134; Navigation Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; School Dist. v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Steele v. Buck, 61 Ill. 343, 14 Am. Rep. 60.

Having concluded that the trial court erred, 'in rendering judgment for appellee upon the agreed facts, and having reached the further conclusion that upon such 'facts judgment •should be in favor of appellant, C. A. Cleaver, against appellee, Drake-Brannum Construction Company, for the sum-of $501, the judgment of the trial court is reversed, and judgment is here rendered' for appellant, C. A. Cleaver, against appellee,' Dfake-Brannuin Construction Company, for $501, and all costs incurred by him. ‘ •

Reversed and rendered.