Bradford v. Whitcomb

The parties to this litigation entered into a written contract which obligated appellee to build for appellant a second story to the "Hotel Bradford," at Amarillo, Texas, and to make certain changes in the old part of the building, including the cutting of a door "from sitting room to cellar," to be completed, in the manner therein specified, on or before July 15, 1893, for which appellant was thereby obligated to pay appellee, after the settlement of all claims by carpenters under the employment of appellee, eleven hundred and twenty-five ($1125) dollars, as soon as said building should be received by appellee or his agent or attorney and acknowledged to be built according to the specifications. About the 20th of June, appellee wrote to appellant, who lived in the State of Alabama, that he would have the building completed between the 1st and 5th of July following, requesting him to be ready to receive it at that time. He failed to do so, and, on July 9th, before it had been received, though it had been completed for several days, except that the door mentioned above had not been cut, the building was entirely destroyed by fire.

In answer to this suit of appellee, instituted July 14, 1893, to recover the contract price, alleging full compliance with its terms on his part, appellant pleaded the general denial. Under the issue thus formed appellee was permitted to prove, over the objection of appellant, his excuse for not cutting the cellar door, as follows: "The reason I did not do this was because Mr. Morphis, who was Mr. Bradford's tenant, occupying the lower story of said building, stopped me, stating at the time that if this door was cut it would ruin two rooms on the lower floor so that he could not occupy them. He did not positively refuse to allow me to cut the door, but requested me not to cut it until he could hear from Mr. Bradford." It did not appear that Morphis had any authority to represent appellant, but rather to the contrary. The ground of objection to this evidence was again urged in the motion for a new trial, to-wit, that proof of an excuse, good or bad, for the non-performance of a material part of a contract could not, and did not, in this instance, sustain the allegation of full performance. Counsel for appellee undertake to meet the objection with the proposition that a substantial performance is all that is required, and that the item was too trivial, even in the estimation of appellant, to obstruct the right of recovery upon a contract otherwise fully performed. In support of the latter contention, they cite the fact that appellant wrote the co-tenant of Morphis, W.R. Baird, July 11, 1893, "Say to my friends in Texas that have complied with their contract in repairing the Hotel Bradford, that they shall have their money according to contract," promising to go to Mobile the next day and remit the money. This letter, however, was in reply to one received from Baird before the building had been completed, notifying Bradford that the work would probably be done by July 5th, and requesting that the money be sent promptly, so that they, Morphis and Baird, might occupy the upper story also, stating that appellee would lock up the rooms if he was not paid. No evidence was offered as to the cost of cutting the door.

That only a substantial compliance with the requirements of a building contract is exacted, has been expressly decided. Lynch v. Paris Lumber Co., 80 Tex. 23.

The difficulty is to determine what amounts to such compliance. It seems clear that every material part of the specified work must be done before the contractor can recover the contract price. To award a recovery for the full price, in a suit claiming that sum as per contract, upon proof of less than full performance of the work undertaken, is to make a new contract for the parties. It seems to be the rule also that an offer to perform will not sustain the allegation of performance. Cherry v. Newby, 11 Tex. 457.

It is clear in this case that the evidence objected to did not show performance, but only an offer to do so, and an excuse for not doing so, which had not been pleaded. The question then is, was the cutting of this door a material or substantial part of the contract? It was distinctly specified as one of the things to be done before the contract price was payable. If it was too trivial and insignificant to have influenced the contract price, appellee might easily have shown that fact. We are asked to assume, without proof, that it would cost little or nothing to cut this door. Suppose we should assume that one dollar would cover it, then ought we not to deduct this $1 from the $1125 which appellee agreed to pay for the entire job? But there is nothing in the pleadings to support such a judgment. The work was never received, but destroyed, and no recovery was sought on the quantum meruit or valebat. The general denial required proof of the case substantially as alleged. It may be said that it appears that the cutting of this door would have been detrimental to the building, but this appears only from the hearsay declarations of the tenant forming a part of the very evidence objected to. But, if otherwise, it was the owner and not the tenant who contracted for the work to be done, and he had the right to have it done to his satisfaction, though it rendered the house valueless.

No reversible error is shown by assignments raising other questions.

On account of the error considered, we feel constrained to reverse the judgment and remand the cause for a new trial.

ON MOTION FOR REHEARING.