Thompson v. Chaffee

GILL, Associate Justice. This action was brought by Mrs. H. Thompson against B. F. Chaffee as principal and S. H. Wilson and H. W. Bland his sureties on a contract for the construction of a house. The purpose of the suit was the recovery of damages for the failure on the part of Chaffee to construct the house as he contracted to do. Chaffee interposed two defenses: (1) That he had undertaken the construction of the house and it was nearing completion when it fell on account of defective plans for which he was in no wise responsible and against which he had protested; and (2) that after the collapse of the building he was proceeding to reconstruct it according to contract when he was restrained from proceeding further by the act of plaintiff in procuring an injunction against his further acts in that respect. The sureties defended on the ground that they signed the bond in view of the contract sued on and certain plans and specifications thereto attached. That thereafter the plans and specifications were changed without their knowledge or consent. It is not questioned that the defense of the sureties and either of the defenses of the principal will bar the plaintiff’s action if found to be established. A trial bv jury resulted in a general verdict for defendants and judgment followed accordingly. The plaintiff has appealed. Mrs. H. Thompson was the owner of a lot in the city of Orange, and desiring to build a house thereon she entered into a contract with the defendant Chaffee by which he undertook to construct it for her at a stipulated price and according to the plans and specifications attached to the contract. She required a bond for its faithful performance and it was furnished, Wilson and Bland, the other defendants, becoming sureties thereon. There is evidence tending to show that the contract at the time the sureties signed the bond had a different set of plans and specifications attached than those sued on, and that the change was made without their knowledge or consent. There was also evidence tending to show that one, Crager, the man who was to use the building as lessee when completed, insisted on certain changes in the construction of the front. That these changes were made over the protest of Chaffee," and that they so weakened the building they contributed to cause its collapse. Defendants claim that the changes were assented to on the part of plain [570] tiff by one Calhoun, her duly accredited agent, and that the changed plans were prepared by an architect named Barnes. Plaintiff and Calhoun deny that the latter acted as her agent, or had any authority which included such an act as the one charged. That Barnes was the author of the plans sued on is undisputed, and plaintiff so admits, and contends that the plans offered in support of her allegations are the plans attached to the contract when she signed it, and that since then there has been no change. The plans sued on are those used in the construction of the building. Under the pleadings of the sureties they might have been discharged from liability, though their principal might be held; but in no event could they be held if the principal established a defense in bar of the plaintiff’s action. This being true, any errors committed affecting only the issue of the liability of the sureties are immaterial if it should be found, that the judgment discharging the principal may stand. Under the first assignment appellant complains of the testimony of Chaffee, admitted over objection, to the effect that the plans offered in evidence by plaintiff were not the plans originally agreed on, and that the originals were different in a material respect. The ground of objection is that the witness stated that the originals had been left with Barnes, who was then in the city of Houston, and the originals should have been produced or their absence accounted for by Barnes, their last custodian, before secondary evidence was admissible. Chaffee testified that he and Barnes' made a joint search for them among Barnes’ papers, and that they could not be found. That such a search is sufficient predicate for the admission of secondary evidence' without calling the last custodian has been decided. (Waggoner v. Alvord, 81 Texas, 365, 16 S. W. Rep., 1083.) But aside from this, the assignment presents a harmless error because, so far as Chaffee’s defenses are concerned, it is immaterial whether the plans were changed or not. According to plaintiff’s theory of her case' the plans offered in evidence are the plans to which she agreed, and it is undisputed that they were the plans by which Chaffee was guided in undertaking the construction of the house. Whether they were changed can only affect the liability of the sureties. As between the plaintiff and Chaffee her suit must stand or fall On the plans sued on. It being' undisputed also that these plans contained the feature, to the weakness of which Chaffee ascribes the fall of the building, a finding of the jury sustaining that defense would sustain the judgment as it stands. In view of the disposition we have made of this appeal we pass unnoticed the second, third and fourth assignments, as they are addressed to matters bearing on the defense of the sureties as such, and are therefore immaterial. The fifth assignment complains of the measure of damages embodied in the court’s charge. This also we regard as harmless because the jury did not reach that question. Appellant’s contention that they were thereby prevented from finding for plaintiff in any event is without force because, if the defenses pleaded by Chaffee were not established, the undisputed evidence would have authorized a verdict for plaintiff in some amount. The sixth assignment is also without merit, and the seventh, assailing [571] the judgment on the ground that it is contrary to the law and the evidence, is too general to be considered. The judgment is affirmed.