Randall v. Smith

2 Posey 397

• Court: Texas Commission of Appeals
• Decided: July 1, 1882
• Docket: No. 4020
• Status: Published

Opinion

Opinion.— The objection to the charge quoted above and given by the court is because the court therein left it to the jury to determine unaided by any explanation as to what did or did not constitute a material change. See Albright v. Corly, 40 Tex., 112. Here the appellant sought to correct the error. by additional charges upon the same issue, which were refused by the court; and while it may be admitted that the charges asked and refused are not literally correct in the exposition of the law applicable to the issue, still they were sufficient to'call the court’s attention t.o the omission in the charge, and require its correction.. If, as claimed, there was such change made in the original plans and specifications by appellee and Leonard, without the consent of appellant, which would in its nature require a greater length of time to complete the buildings than it would require to have completed them under the original plans and specifications, and Leonard adopted and worked upon the plans and specifications-so changed and altered by him and appellee, then under the circumstances of this case appellant would have been discharged from further liability upon the bond. See Lane, Saylor & Robinson v. Scott & Culver, 57 Tex., 367.

The increased value of the material to be used, and the consequent increase in the value of the buildings on the one hand, the increased labor and expense, and consequent injury upon the other, is a sufficient consideration to sustain an agreement, such as is asserted by appellant in the answer, changing the original contract. See Bason v. Hughart, 2 Tex., 476.

Reversed and remanded.