Zandt v. Desdemona Independent School Dist.

The questions arising in the appeals of both the above-styled cases, are the same, and the issues have been fully stated in the case of Edwards Manufacturing Company v. Southern Surety Company, 283 S.W. 324, this day decided.

In these cases the Southern Surety Company pleaded the one-year statute of limitation. Appellants seek to avoid the bar of the one-year statute of limitation prescribed by article 6394h on two grounds: The first is that their suit is not by virtue of the statute, but is a suit on the common-law action arising from provisions of the bond, and that, therefore, their cause of action is based on the common law and not on the statute and that the statute of limitation prescribed by the Legislature applicable to common-law actions applies here. The second is that the statute referred to is a statute of limitation, and that the surety company waived it by impleading appellants and asking that they be required to assert their claims and praying for judgment against the bank and the school district for the amount shown to be due appellants.

The first contention is answered by the decisions in the case of Trinity Portland Cement Co. v. Lion Bonding Surety Co. (Tex.Com.App.) 229 S.W. 483; Southern Surety Co. v. Klein (Tex.Civ.App.) 278 S.W. page 527; Foust v. Bibb et al. (Tex.Civ.App.) 258 S.W. 921. In the first case referred to, the Commission of Appeals held that, where a contractor's bond did not contain the obligation requiring payment for labor and material purchased by the contractor erecting the building, the surety on the bond of such contractor was nevertheless bound by virtue of the statute referred to to pay such laborers and materialmen, as the statutory provision to that effect would be read into the bond. In the case of Southern Surety Company v. Klein, it was held that such provisions were part of the bond and would be read into it, even though the contractor and the municipality had expressly agreed to omit from the bond provisions for payment of such labor and material. If the laborer or materialmen may recover on such a bond without regard to its provisions, it follows that the cause of action is based upon the statute and not upon the provisions of the bond. The case of Mosher Mfg. Co. v. Equitable Surety Co. (Tex.Com.App.) 229 S.W. 318, relied on by appellants, does not appear to in anywise conflict with the holding of the Supreme Court referred to above. In that case, before the statute referred to was enacted, it was decided that an obligation, voluntarily placed in the bond by the parties for the payment of laborers and materialmen, was valid. The reason assigned was that the municipality had the power to contract for the construction of public buildings and the implied authority to bind the contractor to pay materialmen and laborers, but now the Supreme Court holds that the sureties of the contractor are liable by virtue of the statute; therefore, it would follow that the cause of action is statutory and the limitation prescribed in article 6394h is applicable.

In the trial court, neither of the appellants by any pleading presented the question of waiver asserted here. There is nothing in the transcript to show that any such question was ever presented to the trial court. It is the general rule that, where waiver of a right is asserted, it must be pleaded. Scarbrough v. Alcorn, 12 S.W. 72,74 Tex. 358; Texas Produce Co. v. Turner (Tex. Sup.) 27 S.W. 383. And while it is not necessary to specially plead facts which are disclosed by the pleadings of the opposite party, yet, in order for a Court of Civil Appeals to decide a question which is not fundamental, the record must show that the question was raised and passed upon by the trial judge. The pleading of the surety company limited the recovery sought to the valid and enforceable claims of those made defendants and the prayer for judgment must be read in the light of these allegations. Under the state of the record shown, it is not believed that the trial court's action in applying the statute can be reviewed, in the absence of some showing that such application was objected to in the trial court. Travelers' Insurance Co. of Hartford, Conn., v. Scott et al. (Tex.Civ.App.) 218 S.W. 53; Holman Bros. v. Cusenbary (Tex.Civ.App.) 268 S.W. 1064.

Besides, waiver is ordinarily a question of fact to be decided by the trial court, and we would not be authorized to say from the record as a matter of law that the surety company waived the statute.

Let the judgments of the trial court be affirmed.