Freeman v. Nash

431 S.W.2d 794, 1968 Tex. App. LEXIS 2352
CourtCourt of Appeals of Texas
DecidedSeptember 5, 1968
DocketNo. 6966
StatusPublished

This text of 431 S.W.2d 794 (Freeman v. Nash) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freeman v. Nash, 431 S.W.2d 794, 1968 Tex. App. LEXIS 2352 (Tex. Ct. App. 1968).

Opinion

PARKER, Justice.

Plaintiffs, Nash and Cooper, partners doing business as Brazos Construction Company, recovered judgment against J. B. Freeman, doing business as Freeman Pump Company, and Pacific Indemnity Company in the sum of $2,931.21, together with interest. This judgment was based upon three contracts performed by Brazos for Freeman. Freeman subcontracted this construction to plaintiffs. The trial was to the court. The parties will be designated as in the trial court. The trial court made findings of fact and conclusions of law.

The statement of the case contained in the defendants’ brief is:

This is a suit on an account, wherein the plaintiffs sued the defendants for the 10% retainage from three water system jobs, the amounts sued for being $938.-70 for the Reklaw job, $965.00 for the Sacul job, and $1,185.02 for the B.B.S. job, plus $1,000.00 attorneys’ fees. The [795]*795defendants at all times acknowledged owing the $938.70 less $122.50 on the Rek-law job, and the $965.00 less $46.79 on the Sacul job. The Trial Court rendered judgment for the plaintiffs against the defendants for $816.20 on the Reklaw job, and for $918.21 on the Sacul job, and the defendants-Appellants make no complaint of that portion of the Judgment. The battleground in the case was the question of whether any money was owed on the BBS job, and the Trial Court’s award of $897.50 on this job plus $300.00 attorneys’ fees, is what gives rise to this appeal.

On April 28, 1965, Freeman Pump Company entered into three contracts with Brazos Construction Company. These contracts are in writing and provide that all agreements must be made in writing, that Brazos Construction Company would construct water plants for Freeman Pump Company at Sacul for $9,650, Reklaw for $9,387, and the B.B.S. Water Supply Corporation plant for $9,975, and that—

Payments to be made by the 10th of each month for all work completed and materials on site as the work progresses to the value of ninety per cent (90%) of all work completed. The entire amount of contract to be paid within ten (10) Days after completion.

The findings of Fact and Conclusions of Law are:

FINDINGS OF FACT
1.On April 28, 1965, plaintiffs Doyce Nash and C. F. Cooper, and one of the defendants, J. B. Freeman, entered into three written contracts:
(a.) To furnish services, labor, and material for construction of a water plant for the Sacul Water Supply Corporation at Sacul, Texas, in Nacogdoches County, Texas;
(b.) The personal services, labor, and material for construction of a water plant for the Reklaw Water Supply Corporation at Reklaw, Texas, in Cherokee County, Texas;
(c.) The personal services, labor, and material for the construction of a water plant for the B.B.S. Water Supply Corporation in Anderson County, Texas.
2. The defendant, J. B. Freeman, agreed to pay to the plaintiffs, $9,-650.00 for the Sacul contract, $9,-387.00 for the Reklaw contract, and $9,975.00 for the B.B.S. contract.
3. That the defendant, J. B. Freeman, has paid to the plaintiffs, $8,685.00 as partial payment under the Sacul contract, $8,448.00 as partial payment under the Reklaw contract, and $8,997.50 as partial payment under the B.B.S. contract.
4. That on April 28, 1965, as well as at all other times material hereto, the defendant, J. B. Freeman, had knowledge of the fact that the plaintiffs, Doyce Nash, and C. F. Cooper, were operating as a partnership under the name of Brazos Construction Company.
5. I further find that the plaintiffs substantially performed and completed the three contracts in question, that is, the Sacul, Reklaw, and B.B.S. contracts.
6. I further find that the defendant, J. B. Freeman, wrongfully interfered with the reasonable coordination and progress of the B.B.S. contract.
7. However, I do find that the defendant, J. B. Freeman, provided certain supervisory work to the plaintiffs which the plaintiffs accepted and, further, which the defendant, J. B. Freeman, expected some compensation as an offset against the B.B.S. contract in question.
8. I further find that the services by way of supervision furnished by [796]*796the defendant, J. B. Freeman, was of a value of $100.00 to the plaintiffs.
9.I further find that the said defendant, J. B. Freeman, performed no other services, labor, or furnished no other material for which he should receive any compensation or offset since the said J. B. Freeman wrongly interfered with the orderly coordination and reasonable completion of the B.B.S. contract.
10. I find that the said defendant, J. B. Freeman, wrongfully attempted to take over the completion of the B.B.S. contract on July 20, 1965.
11. I find that the defendant, J. B. Freeman, is obligated to pay to the plaintiffs an amount still due and owing on the Sacul contract in the amount of $918.21.
12. I find that the defendant, J. B. Freeman, is obligated to pay to the plaintiffs, $816.20 which is the amount still due and owing to the plaintiffs from the defendants upon the Reklaw contract.
13. I further find that the defendants breached the contract on the B.B.S. job and that the plaintiffs performed services, labor and furnished materials for which he is entitled to compensation on the basis of quantum meruit in that the plaintiffs furnished services, labor and materials for which they expected to be paid, and, further that the defendants accepted the benefit of the services, labor and materials furnished.
14. I find that it was necessary for the plaintiffs to hire attorneys to represent them in their dispute with the defendants and, further, that the attorneys for the plaintiffs should be entitled to receive $300.00 as attorney fees for the breach of contract in the quantum meruit recovery on the B.B.S. contract.
15. I further find that the plaintiffs are entitled to a judgment in the amount of $2,931.91, which includes the $816.20 for the Reklaw contract, $918.21 for the Sacul contract, $897.50 for the amount due and owing to the plaintiffs by virtue of the breach of the B.B.S. contract by the defendant, J. B. Freeman, as well as $300.00 attorney fees which I find are reasonable and necessary.
16. I further find that the defendant, Pacific Indemnity Company, was the bonding company or provided- a bond whereby the faithful performance by Defendant J. B. Freeman toward the contracts of the plaintiffs was guaranteed and insured.
17. I further find that the defendant, Pacific Indemnity Company, had been regularly and duly served with citation herein and appeared at the trial hereof by and through its attorney of record.
18. I further find that the judgment entered herein shall have full force and effect against the said Pacific Indemnity Company in the event that execution against Defendant J. B. Freeman should be returned nulla bona.
19. I further find in the event that the defendant, J. B.

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431 S.W.2d 794, 1968 Tex. App. LEXIS 2352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-nash-texapp-1968.